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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OP  LAW 


A  TREATISE 


ON   THE 


LAW  OF  EXECUTIONS 


IN  CIVIL  CASES, 


AND  OP 


PROCEEDINGS  IN  AID  AND  RESTRAINT  THEREOF 


BY 


ABRAHAM  CLARK  FREEMAN, 

AOTHOB  OP  A  TBSATI8S  ON  THE    LAW  OF  JTJD0MFKT8,   AND  A  1^0  OF  A  TBSATDX   OH  TBI 
LAW  OF  COTENANCY  AND  PASTIXIOM. 


Executio  est  fruclus  et  finis  legis. 


VOL.   I. 

THIRD    EDITION. 


SAN   FRANCISCO: 
BANCROFT-WHITNEY    COMPANY, 

Law  PuBLiBHEKa  and  Law  Booksellebs, 

1900. 


Copyright,  1876, 
By  a.  C.  Freeman. 

Copyright,  1888, 
By  a.  C.  Freeman. 

Copyright,  1900, 
By  a.  C.  Freeman. 


T 

Fy 

Mm? 


< 


LAW   OF  EXECUTIONS. 

VOL.   I. 


5S6S87 


PREFACE  TO  THE  THIED  EDITION. 


Nearly  twelve  years  intervening  since  the  puLlication  of  the 
second  edition  of  this  treatise,  during  which  the  courts  of  this 
country  have  increased  in  number  without  diminishing  in  fer- 
tility or  indusir}',  ha\e  made  a  third  edition  necessary.  The 
text  has  been  enlarged  more  than  one-half.  To  some  extent 
this  is  due  to  a  more  searching  examination  of  decisions  ante- 
dating the  preceding  edition,  but  chiefly  to  those  of  a  later  date. 
Had  they  been  cumulative  only,  their  mere  citation  would  have 
sufliced,  and  any  substantial  enlargement  of  the  work  would 
not  have  resulted.  Such,  however,  is  the  infinite  variety  of 
business  circumstances  and  interests,  as  presented  to  our  courts 
for  consideration,  that  precisely,  or  even  substantially,  the  same 
combination  is  rarely  reproduced.  Generally,  to  each  judgment 
new  thought  must  be  given,  and  for  each  new  rules  of  decision 
formulated,  or  pre-existing  rules  explained,  restricted,  or  ex- 
tended. Notwithstanding  all  that  has  been  done,  preserved  as 
it  is,  aiul  juiide  accessible,  by  voluminous  official  and  unofllcial 
report.-^,  the  practitioner,  however  able  and  industrious,  will  con- 
tinue to  be  confronted  with  new  inquiries  which  he  knows  not 
how  to  answer  with  the  support  of  authority;  and,  though  he 
may  at  times  decry  the  rapid  multiplication  of  books,  the  neces- 
sities of  his  calling  will  ever  make  him,  though  perhaps  un- 
wittingly, cry  for  more. 

The  general  scope  of  this  work  has  not  been  extended,  nor  has 
one  part  of  it  required  or  received  more  attention  than  another. 
Every  topic  within  it  remains  the  subject  of  frequent  and  serious 

(V) 


vi 


rilEf-ACB  TO  THE  TITinO  EDITTOM. 


i„dicial  con.iaeration.  Henoc.  it  has  rcs„U«l  that  he  ■ncrea.e 
in  volume,  though  pcrhar^  oxceptional,  ha.  distr.hutea  ,tseH 
through  the  several  parts  vith  that  ,miforn,ity  «bich  ever  ac- 
compaBics  natural  and  healthful  growth.       ^   ^    j,^,^^,i^j,. 


San  Fea^cisco,  March  1,  1900. 


PREFACE  TO  THE  SECOND  EDITION. 


A  little  more  than  twelve  years  have  elapsed  since  the  pub- 
lication of  the  first  edition  of  niv  treatise  on  the  Law  of 
Executions.  During  that  time  our  various  courts,  state  and 
national,  have  been  busy,  and  their  labors  have  resulted  in 
the  addition  of  many  decisions  to  those  previously  existing  upon 
this  topic.  Hence  the  necessity  of  a  second  edition  of  my 
treatise,  containing  references  to  these  more  recent  adjudica- 
tions and  statements  of  the  legal  principles  which  they  reaffirm 
or  establish.  1  have,  however,  deemed  it  best  not  to  confine 
mvself  to  the  mere  addition  of  new  cases.  On  the  contrary, 
I  have,  re-examined  tlie  whole  subject,  and  have  added  what- 
ever came  within  my  research,  regardless  of  the  date  of  decision. 
The  scope  of  the  work  has  also  been  enlarged  by  including 
within  it  writs  and  proceedings  issued  or  taken  for  the  purpose 
of  enforcing  decrees  in  chancery,  and  this  has  involved  the  con- 
sideration of  chancery  sales  and  the  various  steps  required  to 
procure  their  vacation  or  confirmation,  and  to  compel  the  pay- 
ment of  the  purchaser's  bid.  This  has  occasioned  a  necessity 
for  inserting  two  new  chapters,  and  renumbering  others  in  the 
latter  part  of  the  work.  The  first  of  the  new  chapters  is 
inserted  as  number  xx.,  and  is  devoted  to  the  reporting,  con- 
firming, and  vacating  of  chancery  sales.  Chapter  xx.  of  the 
former^  edition  is  now  numbered  xxi.  The  second  new  chapter 
is  numbered  xxii.,  and  in  it  are  treated  proceedings  to  collect 
the  amount  bid,  whether  at  execution  or  chancery  sales,  or  the 
amount  of  tlie  deficiency  when  it  has  been  ascertained  by  a 
resale.  From  this  point  the  chapters  follow  the  same  order  as 
in  the  first  edition,  but  are  numbered  respectively  from  xxiii. 
to  xxxiv.  instead  of  from  xxi.  to  xxxii. 

(vii) 


viil  PREFACE  TO  THE  SECOND  EDITION. 

With  respect  to  the  law  of  executions,  it  has  been  found  that 
the  questions  requiring  most  frequent  consideration  by  the 
courts  are,  What  property  is  subject  to  execution?  and  what 
exemptions  may  be  allowed?  Special  attention  has  therefore 
been  given  to  the  subjects  of  garnishment,  of  conditions  and 
restraints  designed  to  witlidraw  ])roperty  from  execution,  and 
of  the  various  statuinry  exemptions.  Considerably  more  than 
three  thousand  cases  have  been  added  to  the  table  of  citations, 
and  the  text  has  been  augmented  to  a  corresponding  extent. 

A.  C.  F. 

San  Francisco,  October  1,  1888. 


PREFACE  TO  THE  FIRST  EDITION. 


The  prejudice  against  the  increase  of  law  Looks  is  nnques- 
tionably  great.  So  well  is  this  fact  understood,  that  an  author 
is  expected  to  introduce  his  book  by  an  attempt  to  justify  its 
existence.  I  can  offer  this  apology  for  the  ])roduction  of  each 
of  my  prior  works:  that  it  treated  of  subjects  of  prime  im- 
portance and  frequent  recurrence,  not  recently  nor  extensively 
considered  by  any  other  writer.  I  long  hoped  that  the  same 
apoh)gy  might  be  urged  in  favor  of  this  book;  and  that  any 
asperities  which  might  be  aroused  by  observing  defects  in  its 
exeriition  would  be  mollified  by  the  remembrance  that  it  was 
the  only  effort  which  liad  been  made  to  collect,  arrange,  and 
interpret  a  mass  of  authorities  so  vast  that  their  numbers  bore 
unquestionable  e\  idenco  of  the  difficulty  and  importance  of  the 
subject  with  wliich  they  were  connected. 

"When  this  book  was  about  half  completed,  I  was  deprived 
of  a  portion  of  my  coveted  apology  by  the  publication  of  a 
work  on  the  same  tojnc.  My  first  impulse  was  to  discontinue 
my  own  labors.  lUit  a  work  on  Executions  was  so  clearly  a 
sequel  to  my  work  on  Judgments;  my  thought  and  research  in 
the  preparation  of  the  latter  were  so  evidently  of  a  character 
to  fit  me  for  the  prosecution  of  the  former;  and,  beyond  all, 
I  was  so  thoroughly  interested  in  my  theme — that  I  determined 
to  proceed.  The  result  of  this  determination  is  now  before  the 
reader.  If,  after  a  patient  examination  of  my  work,  he  can 
truly  say  that  there  was  no  need  of  its  puljlication.  and  that 
it  will  i)rove  of  no  material  aid  to  the  bench  and  l)ar  of  my 
country,  then  botli  myself  and  my  pul)lisbers  will  deserve  his 
commiseration  as  much  as  we  shall  merit  his  censure. 

(ix) 


X  PREFACE  TO  THE  FIRST  EDITION. 

This  work,  though  not  formally  subdivided  in  that  manner, 
consists  of  three  parts.  The  iirst  treats  of  exeeutions  against 
the  property  of  the  defendant;  the  second,  of  executions  against 
the  person  of  the  defendant;  and  the  third,  of  executions  ta 
recover  specific  property,  to  the  possession  of  which  the  plain- 
tiff has  been  adjudged  to  be  entitled.  Part  i.  comprises  all  that 
is  usually  understood  by  the  word  "execution,"  and  occupies 
more  than  nine-tenths  of  the  entire  book.  I  have  endeavored 
to  consider  the  several  questions  in  the  order  in  which  they 
are  likely  to  arise.  My  first  eight  chapters  arc  occupied  by 
matters  usually  presenting  themselves  for  consideration  before 
the  writ  is  delivered  to  the  sheriff.  They  treat  of  the  issue 
and  form  of  original  executions;  of  alias  and  pluries  writs;  of 
writs  of  venditioni  exponas;  of  amending  and  quashing  writs; 
of  proceedings  to  obtain  executions  on  dormant  judgments;  and 
of  the  consequences  flowing  from  various  errors  and  irregu- 
larities in  these  several  writs  and  proceedings.  When  a  writ 
is  delivered  to  an  officer,  he  ought  first  to  ascertain  whether 
it  is  one  which  he  may  lawfully  execute;  and  if  so,  within  what 
time  and  limits,  and  under  whose  direction,  he  should  proceed. 
My  ninth  chapter  is  devoted  to  inquiries  which  must  be  made 
by  the  officer  in  ascertaining  tliese  matters.  Naturally,  the 
next  inquiry  is  for  property  on  which  to  enforce  the  writ. 
Chapters  x.  to  xv.,  therefore,  treat  of  real  and  personal  prop- 
erty subject  to  execution;  of  property  bound  by  execution  liens; 
and  of  personal  property  and  homestead  exemptions.  Sup- 
posing that  the  informatioii  contained  in  these  chapters  will 
enable  the  officer  to  learn  with  what  property  he  may  properly 
interfere,  I  have  next  sought  to  show  how  such  property  may 
be  taken  in  execution  and  forced  to  produce  the  satisfaction  of 
the  Writ.  Hence  my  sixteenth,  seventeenth,  and  eighteenth 
chapters  are  devoted  to  levies  upon  real  and  personal  property, 
and  to  proceedings  where  such  property  is  claimed  adversely 
to  the  defendant.  After  the  levy  come  the  proceedings  pre- 
paratory to  the  sale;  the  sale  itself,  and  the  various  measures 
looking  to  its  confirmation  or  vacation;  the  redemption,  if  any 


I'KKFACE  T(J    I'lli:  FIRST  EDITION.  xl 

1)0  made,  and  if  not,  then  the  deed  and  the  various  questions 
looking  to  the  ascertainment  of  the  purchaser's  rights  and  of 
the  means  by  wliich  they  may  be  enforced.  These  questions 
and  proceedings  occupy  chapters  xix.  to  xxiii.  Keturns  on  exe- 
cutions, their  etlVct  and  admissibility  as  evidence,  and  the  cir- 
cumstances in  whicli  tlicy  may  be  quashed  or  amended,  are  the 
subjects  embraced  in  chapter  xxiv.  Chapters  xxv.  and  xxvi. 
treat  of  profH-cdings  by  elegit  as  they  were  formerly  pursued  in 
England,  and  of  ])roceedings  by  extent  as  they  are  now  author- 
ized in  most  of  the  New  England  states.  Here  terminate  the 
proceedings  ordinarily  taken  under  executions  against  property; 
but  as  they  do  not  uniformly  prove  effective,  we  have  yet  to 
consider  what  further  steps  may  be  taken  to  compel  the  satis- 
faction of  the  plaintiff's  demand.  Hence  the  necessity  for 
chapters  xxvii.  and  xxviii.,  upon  ])roceedings  at  law  and  in 
equity,  supplemental  to  or  in  aid  of  execution.  To  these  I 
have  added  a  brief  chapter  upon  c(iuitable  proceedings  restrain- 
ing executions.  Chapter  xxx.  treats  of  the  satisfaction  of  exe- 
cutions and  the  distribution  of  their  proceeds.  Chapters  xxxi. 
and  xxxii.  comiu-ise  parts  ii.  and  iii.  of  the  book.  Their  con- 
tents have  already  been  indicated.  It  will  be  observed  that  I 
have  not  collected  in  any  single  chapter  the  rules  governing 
the  liabilities  of  odieers  and  others  for  wrongful  acts  done  while 
engaged  in  the  service  of  executions;  nor  have  I  separately 
treated  of  actions  to  enforce  those  liabilities.  Neither  of  these 
subjects  has,  however,  been  overlooked.  Each  has  been  con- 
sidered in  numy  dill'erent  portions  of  the  book,  in  connection 
with  other  subjects  from  which  I  deemed  it  inseparable. 

Recently,  American  text-books  have  been  unfavorably  criti- 
cised in  England,  because  of  their  numerous,  and  apparently 
inconsiderate,  citation  of  cases.  It  were  better,  in  the  opinion 
of  our  critic,  for  an  author  to  confme  his  attention  and  that 
of  his  readers  to  those  cases  which,  from  being  carefully  con- 
sidered by  courts  of  acknowledged  erudition,  probity,  and  abil- 
ity, really  deserve  the  name  of  autJtorities,  than  to  cite  indis- 
criminately everything  which  has  been  honored  by  the  immor- 
tality of  a  publication  in  a  law  report.     This  opinion  is  so 


XU  PREFACE  TO   THE   FIRST   EDITION. 

plausible  that  it  has  met  the  concurrence  of  several  law  periodi- 
cals in  this  country.  But  it  unist  be  renunnbered  that  we  have 
many  supreme  courts,  each  making  and  publishing  decisions 
which  are  regarded  as  Jaw  within  the  jurisdictions  in  which 
they  are  pronounced.  The  result  of  this  is  not  one  system 
of  law,  hut  many  systems.  A  text-book  is  expected  to  go  into 
every  part  of  our  Union.  It  must  be  tbe  companion  and  assist- 
ant of  practitioners  under  all  these  various  systems.  This  it 
cannot  be  unless  it  is  competent  to  refer  each  to  the  cases  on 
which  he  may  rely  with  the  greatest  degree  of  confidence  at 
the  place  where  he  happens  to  be  discharging  the  duties  of  his 
profession.  A  decision  made  by  the  highest  court  of  the  young- 
est or  most  obscure  of  our  states  or  territories  may  be  treated 
with  indifference,  or  even  with  contempt,  in  Eiigluiul,  or  Massa- 
chusetts, or  New  York.  .  It  may,  in  fact,  richly  deserve  such 
treatment.  It  is,  nevertheless,  the  law  in  the  jurisdiction  in 
which  it  was  pronounced.  To  the  practitioners  and  to  all  other 
persons  within  that  jurisdiction,  it  is  paramount  in  importance 
to  tlie  decisions  of  all  other  legal  tribunals,  however  wise  or 
venerable  they  may  be.  Hence  no  text-writer  can  properly 
ignore  it.  Whatever  he  may  think  of  it  himself,  he  must  not 
forget  that,  in  one  state  at  least,  it  nui.<t  be  treated  as  a  correct 
exposition  of  the  law. 

This  book  will  be  found  to  contain  nearly  fourteen  thousand 
citations,  embracing  references  to  over  ten  thousand  different 
cases.  These  large  numbers  prove  that  my  theme  is  one  which 
has  compelled  the  attention  of  courts  with  extraordinary  fre- 
quency, and  entitled  itself  to  the  distinction  of  a  treatise  de- 
voted to  its  exclusive  consideration.  The  materials  for  this 
treatise  are  so  numerous  and  so  various  that  their  arrangement 
has  given  me  far  greater  trouble  than  any  similar  task  which 
I  have  heretofore  undertaken.  Whethei'  tlie  result  ])roves  grati- 
fying or  otherwise,  the  reader  may  feel  assured  that  I  have 
spared  neither  time  nor  labor  in  the  attempt  to  do  justice  both 
to  him  and  to  myself. 

A.  C.  F. 

Saceame.nto,  Cal.,  August  1,  1S7G. 


TAJiLK  OF  CONTEXTS. 


CHAPTER  I. 

DEFINITIONS  AND  CLASSIFICATIONS. 

Object,  classification,  and  definition  of  executions — Exeeutious 
for  possession  of  real  and  [)  rsonal  property — Executions 
airainst  chattels — Writs  in  aid  of  executions — "Writs  to  en- 
force decrees §  §    1-9 

CHAPTEH  11. 

ISSUING   THE   ORIGINAL   EXECUTION. 

The  courts  that  may  issue  it — The  judgments  on  which  it  may 
issue — For  and  against  Avhom  and  by  whom  issued — Time 
for  issuing — Suspension  of  riglit  to  issue — Issuing  writs  of 
attachmeat — Seiiuestratiou,  assistance,  and  other  writs  to 
enforce  decrees — Practice  to  be  pursued  in  obtaining  writs 
of  assistance §§  10-37  e 

CHAPTEPv   III. 

THE   FORM   OF  THE   ORIGINAL  EXECUTION. 

Essential  parts — Consequences  of  variances,  omissions,  and 
alterations — Forms  of  execution  and  other  writs  to  enforce 
decrees §§  J8-47  a 

CHAPTER   lY. 

ISSUING   ALIAS   AND   PLURIES    WRITS. 

Classification — The  return  and  proceedings  under  former  writs 
— On  judgments  satisfied  by  mistake — Where  former  writ 
was  void — Where  a  sale  has  couveye<l  no  title — Form  of — 
Notice  to  obtain §g  48-56 

(xiii) 


xiv  TABLE    OF    CONTENTS. 

CHAPTER   V. 

THE  AVlllT  OF  VENDITIONI  EXPONAS. 

Definition — Object — May  have   fieri    facias    clause — Eft\ct    of 

sale  under — Collatei;pl  attack — To  -whom  directed §§  r)7-G2 

• 

CHAPTER  VI. 

AMENDING  WHITS  OF  EXECUTION. 

Extent  of  the  power  to  amend,  and  instances  in  which  it  will 
be  exercised — Time — Persons  against  whom  amendmeuts 
may  be  made — Effect  of  amendments §§  G3-T2 

CHAPTER  VII. 

QUASHING  WRITS  OF  EXECUTION. 

What  may  be  Quashed— Notice  of  motion  for — Who  may  apply 

for — Time — Grounds — Consequence  of §§  TO-SO 

CHAPTER  VIII. 

PROCEEDINGS    TO     OBTAIN     EXECUTION    ON     DORMANT 
JUDGMENTS. 

First,  by  scire  facias— Object  of  this  writ— In  what,  actions  it 
^lay  issue — When  necessary — Form  of  writ — Service  of — 
Time  for  Issue — Irregnlarities — Judgments  on  scire  facias 
— Alias  writs  of— Second,  by  motion §§  St-HT 

CHAPTER    IX. 

INQUIRIES    CONCERNING    THE    DUTIES   AND    LIABILITIES 
OF  OFFICERS  ON  RECEIVING  WRITS. 

Indorsing  time  of  receipt— Ascertaining  whether  the  writ  is 
valid,  and  whether  he  may  safely  execute  it— Competency 
of  the  ofl3cer  to  execute  the  writ— Termination  of  officer's 
authority— ^^'hen  he  must  act— Who  may  control  the 
writ....: §§  98-108 

CHAPTER    X. 
PERSONAL  PROPERTY  SUBJECT  TO  LEVY  AND  SALE. 

Classification— Conflict  of  Laws— Tnngible  property— :\Ioney— 
Choses    in    action  —  Crops  —  Fixtures  —  The    defendant's 


TABLE   OF    CONTENTS.  XV 

actual  interest  only— Equitable  and  loasohold  estates— In- 
terests of  mortgagors  and  mortgagees,  pawners  and 
pawnees,  bailors  and  bailees,  cotenants  and  copartners — 
Inchoate  estates— Estates  in  reversion  or  remainder— Prop- 
erty hold  under  conditional  purchase— Property  subject  to 
execution  in  equity- Defendant  whose  property  cannot  be 
seized — Property  in  custody  of  law — Property  conveyed  or 
mortgaged  to  hinder,  delay,  or  defraud  creditors — Absence 
of  change  of  possession  as  evidence  of  fraud  in  trans- 
fers  §§  100-15S 

CHAPTER  XI. 

PERSONAL  PROPERTY  SUB.JECT  TO  GARNISHMENT. 

Object  of  garnishment— Garnishment  of  property  not  subject 
to  execution  or  fraudulently  transferred  —  Possession 
necessary  to  render  persons  liable  as  garnishee — Bailee  of 
choses  in  action — Debts  subject  to  garnishment §§  Iu9-1T1 

CHAPTER  XII. 

REAL  PROPERTY  SUBJECT  TO  EXECUTION. 

Lands  subject  to  execution  at  common  law — Uncertain,  con- 
tingent, and  undivided  intrrests — General  rule — Naked 
legal  title — Title  without  possession— Possession  without 
title — Interest  held  under  the  United  St^ites- Various 
estates  and  interests — Equitable  titles — Devises  and  trusts 
to  withdraw  property  from  execution §S  172-104 

CHAPTER  XIII. 

THE   LIEN   OF   EXECUTIONS. 

General  nature  of  the  lien,  and  its  difference  from  other  liens- 
Property  subject  to — Commencement  of — Duration — Dor- 
mancy—Loss of— Effect  of  bankrupt  act  upon §§  195-207 

CHAPTER  XIV. 

OF  PROPERTY  EXEMI'T  FROM  EXECUTION. 

Statutes  of  exemption— How  construed— Extraterritorial  effect 
of_ciaIm— Waiving  and  forfeiting  benefits  of— Conse- 
quences of  disregarding- Debts  against  which  exemption 
may  be  enforced — Sale  and  encumbrance  of  exempt  prop- 
erty—Constitutionality of  exemption  laws— Persons  en- 
titled to  exemption — Various  classes  of  exempt  prop- 
erty  ^ §§  208-238 


xvi  TABLE   OF   CONTENTS. 

CHAPTER  XV. 

HOMESTEAD  EXEMPTIONS. 

Who  entitUnl  to— How  selected— What  titles  may  be  held  by- 
Uses  of  houu'stead  for  business  and  other  purposes- 
Homestead  appurtenances — Amount  of— Abandonment 
and  forfeitur(>— Inabilities  against  whicli  homesteads  are 
not  exempt— Produce  and  proceeds  of  homesteads— Claims 
for  moneys  fraudulently  invested  in- Judgments  for  torts, 
or  in  favor  of  state  or  United  States— Sale  of  to  satisfy 
lieus §§  230-250 

CHAPTER   XVI. 

OF  I-EVIES  UPON  PERSONAL  PROPERTY. 

Which  M-rit  to  be  tirst  levied— Diligence  required— What 
amount  should  be  seized- Whose  property  may  be  taken— 
Levy  on  property  of  which  defendant  is  a  part  owner— 
Of  indemnity — Acts'  required  to  make  and  maintain  a 
li'vy — liestoring  possession  to  defendant — Receiptors — In- 
ventory— Levy  under  second  writ — Effect  of  levy — Levy 
accomplished  by  unlawful  act— Releasing  and  vacating — 
Luiliilily  for— Necessity  of §§  251-274 

CHAPTER  XVII. 

REMEDIES  OF  OFFICERS  WHERE  THE  TITLE  TO  PERSON- 
ALTY IS  DISPUTED. 

Methods  of  protection  from  claim  of  strangers  to  the  writ— 
Riglit  to  indemnity — Summoning  a  jury — Trial  of  right  of 
pr.jperty— IMlls  of  interpleader §§  275-278 

CHAPTER  XVIII. 

OF  LEVIES  Ul'ON  REAL  ESTATE. 

Not  to  be  made  where  there  is  personalty— How  made — Stat- 
utory provisions  respecting — Describing  the  property — 
Effect  of §§  279-282 

CHAPTER    XIX. 

PROCEEDINGS  FROM  THE  LEVY  TO  AND  INCLUDING  THE 

SALE. 

General  synopsis  of  the  officer's  duties— Appraisement— No- 
tice of  sale — Time  of  sale — Adjournments — Placi-  of  sale 


TABLE   OF   CONTENTS.  xvii 

— By  wiioin  find  to  whom  s;ile  may  bo  madi' — Pcllinj;  in 
parcels — Frniululcnt  combinations  and  devices — Memoran- 
dum of  sale — Payment  of  bids — Resales — Liability  for 
wrongful  sales,  and  for  no;j;lectinf;  to  sell §§  283-304 

CHAPTER    XX. 

REPORTING,     CONFIRMING     AND     VACATING     CHANCERY 

SALES. 

Necessity  for  confirmation — The  report  of  the  sale  and  pro- 
ceedinps  thereon — Openinj;  the  bid<lings — Grounds  for  re- 
fusin,:;  conlirmatiou  and  vacating  sales — Effect  of  the  con- 
firmation   §§  304  a-304 1 

CHAPTER   XXL 

VACATING    AND    C0NFIR:\IING    EXECUTION    SALES— ISSUE 
AND  TRANSFER  OF  CERTIFICATES  OF  PURCHASE. 

Who  may  move  to  vacate  sale — Notice  of  motion  and  time 
within  which  it  must  be  given — Suits  to  vacate  sales- 
Grounds  for — Inadequacy  of  price — Contirming  sales — Is- 
sue of  certificates  of  sale,  and  the  assignment  thereof. §§  305-313 

CHAPTEPt   XXII. 

PROCEEDINGS  TO  COLLECT  THE  AMOUNT  BID. 

Power  of  chancery  over  bidders — Order  against  purchaser  to 
pay  his  bid — Proceedings  for  resale — Proceedings  to  com- 
pel payment  of  loss  resulting  from  resale — Action  at  law 
for  amount  of  bid,  or  for  deficiency §§  31  o  a-3l3  h 

CHAPTER    XXIII. 

REDEMPTION  FROM  EXECUTION  SALE. 

Depends  on  statute — Waiver  of  defects  in  making — Retro- 
active statutes — By  whom  may  be  made — Evidence  oT 
right  to  redeem — Araoimt  to  be  paid — Effect  of — Bill  in 
equity  — Title  of  purchaser  pending  right  of  defendant  to 
redeem §§  314-323 

CHAPTER    XXIV. 

the' DEED. 

Necessity  for — Authority  to  make — How  compelled — By  whom. 
to  whom,  and  when  to  be  made — Forms,  recitals,  vari- 
ances— Description — Acknowledgment — Second  deed — FJ- 
fect  bv  relation — Contradicting §§  324-334 


xviii  TAI5LE   OF   CONTENTS. 

CHAPTER  XXV. 

THE  PURCHASEirS  TITLE,  RIGHTS,  AND  REMEDIES. 

Obtains  defendant's  title  and  no  otlier — Secret  vices  and  equi- 
ties— Irregularity  in  the  proceedings — Reversal  of  judg- 
ment— Right  to  rents  and  profits — Remedies  t\)r  waste  and 
to  recover  possession — Defenses  which  can  be  asserted 
against  the  purchaser — lieuiedy  for  failure  of  title — Pur- 
chaser's riglit  to  subrogation,  or  to  hold  land  until  repaid 
the  amount  of  his  bid §§  335-352  a 

CHAPTER  XXVI. 

OF  RETURNING  EXECUTIONS. 

When  and  by  wlioni  to  be  made — Form  of  various  returns — 
Amendments — Quashing — Construing — Wlien  returns  are 
admissible  as  evidence — How  compelled — Liability  for 
false  return  and  for  neglecting  to  return §§  353-369 

CHAPTER  XX VII. 
PROCEEDINGS  UNDER  ELEGITS. 

History— What  to  be  taken— Proceedings— Effect  of §§  370-371 

CHAPTER    XXVIII. 

EXTENDING  EXECUTIONS  UNDER  THE  STATUTES  OF  THE 
NEW  ENGLAND  STATES. 

Strict  construction  of  statutes— What  may  be  extended — Ap- 
praisers, tlieir  oatlis  of  office,  appointment,  duty,  and  pro- 
ceedings— When  extent  must  be  by  metes  and  bounds- 
Extent  for  too  much — Delivery  of  seisin — Officer's  re- 
turn— Recording — Contradicting  and  amending  the  re- 
turn—Redemption from— Effect  of §§  372-391 

CHAPTER   XXIX. 

PROCEEDINGS  AT  LAW  SUPPLEMENTAL  TO  OR  IN  AID  OF 

EXECUTION. 

Definition,  object,  nature,  and  classification — On  what  judg- 
mcnt.s — In  wliat  courts  and  by  and  against  wliom  may  be 
prosecuted — Witnesses  and  their  examination — Procee<l- 
ings  to  obtain  from  a  defendant  the  discovery  of  his  as- 
sets— Arrest  of  defendant — Grounds  for  discharge  of  de- 


TABLE   or   CONTENTS.  xir 

ft>n(l:int  without  cxaiiiination — Socoad  examination — Pro- 
(•('('(lins^s  a^Mlnst  third  pi-rsons — Receivers — Property 
A\  hich  may  he  readied — Power  to  enforce  obedience  to  or- 
ders— Garnishee's  right  to  paj'  oflieer  holding  the  writ.§§  [i{)2-42:\ 

CHAPTER  XXX. 

PROCEEDINGS  IN  EQUITY  IN  AID  OF  EXECUTION  AND    PO 
REACH  EQUITABLE  ASSETS. 

Object — Property  snbject  to — On  wbat  judgments— Necessity 
for  exhausting  legal  remedies — Parties  plaint  ill'  and  <li'- 
fendaut — The  lien  of  creditors'  bills §S  4:i4-4:]4 

CHArTEiJ  xxxr. 

ENJOINING  pro('i:i:din(;s  tndeu  execution. 

No  injunction  where  tlier<'  is  an  adequate  n-nnMly  at  law — 
Nor  on  account  of  errors  or  irregularities — Enjoining  sale 
of  property^not  belonging  to  the  dofendant  —  Injunction  to 
prevent  dispossession  of  one  person  under  writ  against  an- 
other— Preventing  the  clouding  of  titles  and  the  sale  of 
exempt  property — Compelling  ri'soil  to  a  particular  fund — 
Injunctions  in  aid  of  proceedings  in  banliruptcy §§  4:;.">-441 

CHAPTER  xxxrr. 

SATISFACTION    OF    EXECUTIONS    AND    DISTRIBUTION    OF 
THEIR  PROCEEDS. 

Payment,  how  and  to  whom  made — Keeping  the  writ  alive 
after  payment — Satisfaction  by  proceedings  under  execu- 
tion— Remedy  where  officer  is  in  doubt  about  distribu- 
tion of  proceeds — General  rules  of  distribution — Liability 
of  officers  for  proceeds,  and  actions  to  enforce  such  lia- 
bility   §5  442-450 

(  II.M'TKIJ    XXX rii. 

•  EXECUTIONS  A(;a1NST  the  PERSON. 

History — Cases  in  which  it  may  issue — Form — Irregularities — 
Amending  and  quasliing — Privilege  from  arrest — How  exe- 
cuted— EtTect  of  arri'st — Discharge  from  custody — Escapes 
and  liability  tlierefor— licarrest  under   S§  4."»l-4i',7 


XX  TACr.E    OF   CONTENTS. 

ClIAI'TKR    XXXIT. 

EXECUTIONS  FOR    TlIK     POSSESSION   OF   REAL   AND   PER- 
SONAL PROPERTY. 

"Writs  for  possession  of  personalty — Taking  possession  witliout 
a  writ — Issuing  Avrits  for  the  possession  of  real  estate — 
Form  of — Compelling  and  controlling  execution  of — How 
executed — Who  may  be  dispossessed — Restitution — Pro- 
ceedings Avhcro  defon<lants  wrongfully  retake  posses- 
sion  §§408-477 


LAW  OF  EXECUTIONS. 


CHAPTER  I. 

DEFIXITIOXS  AND  CLASSIFICATIONS. 

§  1.  General  object  and  definition  of  executlous. 

§  2.  General  classification  of  executions. 

§  8.  In  real  actions. 

§  4.  In  actions  for  possession  of  personalty, 

§  5.  Against  the  person. 

§  6.  Against  lands, 

§  7.  Against  chattels. 

§8.  Writs  in  aid  of  execution;  proceedings  for  contempts. 

§  8a.  Writs  to  enforce  decrees. 

§  9.  Classification  of  executions  as  treated  in  this  work. 

§  1.  General  Object  and  Definition  of  Executions.— 
Theoretically  a  judj;iiieiit  is  the  end  of  the  law.  It 
permanently  settles  disputed  issues  of  fact  and  applies 
to  the  facts  as  thus  settled  established  principles  of 
law.  It  declares  the  respective  obligations  of  the  liti- 
gants in  regard  to  the  matters  whicli  ther  have  chosen 
to  submit  to  the  decision  of  the  court.  Practically,  a 
judgment  may  be  as  far  from  the  end  as  it  is  from  the 
beginning  of  the  law.  The  declaration  of  a  right  or 
the  permanent  and  unalterable  establishment  of  an 
obligation  can  of  itself  have  no  practical  force,  except 
as  it  operates  on  the  private  or  the  public  conscience; 
and,  unfortunately,  people  who  have  engaged  in  a  long 
and  perhaps  bitter  litigation  are  likely  to  emerge  with 

Vol.  I.— 1 


§  1  DEFINITIONS  AND  CLASSIFICATIONS.  2 

consciences  so  dulled  toward  eacli  other  that  they  will 
respond  to  nothing  less  than  the  practical  forcing 
power  of  the  law.  Even  w'here  this  state  of  mind  has 
not  been  produced,  the  losing  party,  through  his  in- 
iihility  to  discharge  the  established  obligation,  may 
make  it  indispensable  to  call  in  aid  the  final  process 
of  the  law.  Every  step  taken  from  the  issue  of  this 
]irocess  is  liable  to  be  attended  with  legal  embarrass- 
ments of  the  most  perplexing  nature  and  to  lead  to 
litigation  more  persistent  and  more  complicated  than 
that  upon  which  the  process  was  based. 

The  writ  which  authorizes  the  sheriff  or  other  offi- 
cer either  to  enforce  a  judgment  at  law  or  to  endeavor 
To  produce  a  satisfaction  thereof  is  called  an  execu- 
lion.*  Every  writ  which  aiithoriz<'S  an  officer  to  carry 
into  effect  a  judgment  is  an  execution.^  "The  writ  of 
execution  is  a  written  command  or  i>recept  to  the  sher- 
iff or  ministerial  officer  directing  him  to  execute  the 
judgment  of  the  court.  It  is  the  command  of  the 
court,  addressed  to  a  ministerial  officer,  in  writing  and 
under  the  seal  of  the  court,  containing  with  more  cer- 
lainty  the  command  of  the  court,  and  expressed  with 
more  solemnity  than  if  uttered  verbally  by  the  court. 
It  is,  nevertheless,  the  command  of  the  court  to  the 

1  -'Execution. execntio.sisnitietli  in  law  the  obiaining  of  actiinl  pos- 
Sfission  of  anything  acquired  by  judgment  of  law  or  by  a  fine  execu- 
tory levied,  whether  it  be  by  the  sheriff  or  by  the  entry  of  the 
party."  Co.  I^it.  154 d.  "Execution  is  the  act  of  carrying  into  effect 
ihe  final  judgment  of  a  court  or  other  jurisdiction.  The  writ  wliicli 
authorizes  the  officer  to  so  carry  into  effect  such  judgment  is  also 
called  an  execution."  Bouvier's  Law  Diet.,  tit.  Execution.  "Execu- 
tion, in  a  practical  sense,  is  the  formal  method  prescribed  by  law, 
whereby  the  party  entitled  to  the  benefit  of  a  judgment  or  of  an 
obligation  equivalent  to  judgment,  may  obtain  that  benefit."  Bing- 
ham on  Judguicnis  and  Executions,  101. 

'-'  Pierson  v.  Hainmoud,  22  Tex.  585;  United  Stales  v.  Nourse,  D 
I'et.  28;  Darby  v.  Carson,  D  Oliio,  149. 


S  DEFINITIONS  AND  CLASSIFICATIONS.  S  1 

officer  to  proceed  to  execute  the  judgment  of  the 
court."  ^  It  has  also  been  said  that  an  execution  "is 
a  judicial  writ  issuing  out  of  the  court,  containing  the 
record  or  other  judicial  proceeding  on  which  it  is 
grounded."  The  definitions  thus  quoted  include  in 
them  elements  by  no  means  necessary  to  an  execution, 
even  when  it  is  based  on  a  judgment  or  decree  of  the 
court.  The  command  of  the  writ  may  as  properly  be 
rejrarded  as  the  command  of  the  law  as  of  the  court. 
The  writ  need  not  be  under  seal  unless  the  statute  so 
requires,  nor  does  it  always  issue  out  of  the  court  con- 
taining the  record  or  other  judicial  proceeding  on 
which  it  is  grounded. 

A  writ  of  execution  is  not  necessarily  based  upon  a 
judgment.  It  may  be  employed  to  enforce  other  obli- 
gations which,  by  statute,  have,  in  this  respect,  been 
made  equivalent  to  judgments.  A  familiar  instance  of 
this  existed  in  the  English  law  in  the  case  of  certain  ob- 
ligations by  matter  of  record.  Each  of  these  obliga- 
tions was  "a  writing  obligatory,  acknowledged  before 
a  judge  or  other  officer  having  authorit}'  for  that  pur- 
pose, and  enrolled  in  a  court  of  record;  and  of  this  there 
are  two  sorts,  viz.,  recognizances  and  statutes.  The 
first  of  these  securities  is  the  recognizance  at  common 
law,  which  is  no  more  than  an  obligation  on  record, 
and  may  be  acknowledged  before  the  several  judges  out 
of  term  and  in  any  part  of  England,  and  may  be  entered 
on  record  as  well  out  as  in  term."  *  The  statutes  re- 
ferred  to    are    statute  merchant  and  statute  staple.'' 

:<  Kelley  v.  Yinoout.  S  Ohio  St.  420. 

4  Bac.  Abr..  tit.  Execution,  B,  1. 

••  "A  Statute  merohaut  is  a  bond  of  record,  ncknowledped  before 
one  of  the  clerks  of  the  statute  merchant  and  mayor  of  the  city  of 
Ivondon,  or  two  merchants  of  the  said  city,  for  that  purpose  as- 
signed, or  before  the  mayor  or  warden  of  tlie  towns,  or  other  dis- 


§  1  DEFINITIONS  AND  CLASSIFICATIONS.  4 

There  are  a  number  of  instances  in  the  United  States 
where,  by  statute,  an  execution  may  be  issued  without 
being  preceded  by  a  judgment.  But  the  term  "execu- 
tion" will  not  in  this  work  be  used  in  its  most  compre- 
hensive sense.  It  will  be  employed  in  its  most  usual 
sense —  a  sense  in  which  it  denotes  a  writ  issued  to 
enforce  a  judgment  or  order  of  a  court  of  law,  or  a  final 
decree  of  a  court  of  equity. 

In  many  of  the  states  codes  are  in  force  under  which 
the  same  courts  exercise  both  a  common-law  and  an 
equity  jurisdiction,  and  the  differences  between  the 
procedure  in  cases  of  an  equitable  and  those  of  a  lecral 
nature  are,  as  far  as  possible,  abolished.  Where  such 
is  the  case,  the  definition  which  we  have  given  is  ac- 
cepted without  hesitation.*^  This  definition  is  of  prac- 
tical importance  in  the  construction  of  statutes  which 
refer  in  general  terras  to  executions,  or  to  sales  under 
execution.  These  statutes  will  generally  be  held  ap- 
plicable to  proceedings  under  any  writ  for  the  enforce- 
ment of  a  judgment,  irrespective  of  the  name  which 
may  have  been  given  to  writs  of  similar  character  when 
used  at  common  law  or  by  courts  of  equity.  A  statute 
provided  that  if  any  person  should  bid  off  any  property 
"at   any  sale   made   by  virtue  of   an   execution,"  and 

creet  men  for  that  purpose  assigned.  This  recognizance  Is  to  be 
entered  on  a  roll,  which  must  be  double,  one  part  to  remain  with  the 
mayor  and  the  other  with  the  clerk,  who  shall  wrire  with  his  own 
hand  a  bill  obligatory,  to  which  a  seal  of  the  king  for  that  purpose 
appointed  shall  be  affixed,  together  with  the  seal  of  the  debtor." 
"The  statute  staple  is  a  bond  of  record,  acknowledged  before  the 
mayor  of  the  staple  in  the  presence  of  all  or  one  of  the  constables. 
To  this  end,  says  the  statute,  there  shall  be  a  seal  ordained,  which 
shall  be  affixed  to  all  obligations  made  on  such  recognizances  ac- 
knowledged in  the  staple."     Bac.  Abr.,  til.  Execution,  B.  1. 

«  Beard  v.  Wilson.  r,2  Ark.  29G;  Southern  etc.  T.  Co.  v.  Ocean  etc. 
Co.,  94  Cal.  217;  28  Am.  St.  Hep.  11.');  Ex  parte  Voltz,  37  lud.  237: 
Eeid  V.  Xortliwestern  etc.  Co.,  32  Pa.  St.  257. 


5  DEFLNiriONS  AND  CLASSIFICATIONS.  §  1 

should  fail  to  comply  with  the  terms  of  the  sale,  he 
should  be  liable  to  pay  to  the  plaintiff  twenty  per  cent 
of  the  value  of  the  property  so  bid  off,  to  be  recovered 
by  motion.  A  sale  having  been  made  under  a  writ  of 
venditioni  exponas,  the  purchaser  insisted  tliat  he  was 
not  liable  under  this  statute  because  the  sale  was  not 
"made  by  virtue  of  an  execution."  The  court,  how- 
ever maintained  that  execution  was  "the  act  of  carry- 
ing into  effect  the  judgment  of  a  court,"  and  hence  that 
the  sale  in  question  was  made  by  virtue  of  an  execu- 
tion;'' In  Pennsylvania  it  has  been  said  that  "the  word 
'execution'  has  always  been  understood  as  meaning  a 
writ  to  give  possession  of  a  thing  recovered  by  judg- 
ment or  decree.  It  is  clearly  distinguishable  from  a 
mere  order  of  sale."  Hence  the  court  held  that  a  sale 
in  partition  was  a  judicial  rather  than  an  execution 
sale.®  We  do  not  question  this  uKimate  conclusion, 
for,  notwithstanding  all  writs  for  the  enforcement  of 
judgments  and  decrees  may  api^ropriately  be  termed 
executions,  it  does  not  follow  that  all  are  alike  in  form, 
substance,  or  r(^sult.  A  sale  may  be  judicial,  though 
authorized  and  directed  by  an  execution,  and  may,  nev- 
ertheless, be  subject  to  statutory  provisions  respecting 
sales  under  execution.  Tlius  a  judgment  foreclosing 
a  mortgage  or  other  lien,  and  directing  the  sale  of  spe- 
cific property  for  its  satisfaction,  is  often  enforced  by 
what  is  commonly  called  "an  order  of  sale,"  and  some- 
times by  a  mere  certified  copy  of  the  judgment,  deliv- 
ered to  the  officer  directed  to  make  the  sale.  The  sale 
when  made  is  a  judicial  sale  if  confirmation  thereof 
by  the  court  is  required,  but  it  is,  nevertheless,  also  a 

7  Lockridge  v.  Baldwin,  20  Tox.  .30G;  70  Am.  Dec.  385. 
«  (iirard  L.  I.  Co.  v.  Farmers'  &  M.  Bauk,  57  Pa.  St.  388. 


§  2  DEFINITIONS  AND  CLASSIFICATIONS.  ff 

sale  made  under  execution,®  and  hence  a  statute  pro- 
viding that  sales  under  execution  shall  be  subject  to 
redemption  within  the  time  and  in  the  manner  therein 
designated  is  applicable  to  sales  made  under  judg- 
ments foreclosing  mortgages/"  and  a  limitation  of  the 
time  within  which  execution  may  issue  also  applies  to 
writs  issued  to  enforce  judgments  of  this  class/^ 

§  2.  General  Classification  of  Executions  on  Judg- 
ments.— As  an  execution  is.  issued  to  make  a  judgment 
productive,  it  must  be  of  such  a  nature  as  to  produce 
all  the  relief  warranted  by  the  judgment  and  no  more. 
In  other  words,  an  execution  is  necessarily  of  the  same 
nature  as  the  judgment  on  which  it  is  based.  This 
judgment  is  either  for  the  recovery  of  some  specific 
thing,  or  for  some  specified  sum  of  money,  or  both  for 
the  recovery  of  some  specific  thing  and  some  specified 
sum  of  money,  or  for  the  recovery  of  some  thing,  and, 
in  case  it  cannot  be  had,  for  the  recovery  of  a  sum  of 
money.  Executions  may  therefore  be  divided  into  four 
classes: 

1.  Those  which  authorize  the  officer  to  deliver  to 
the  plaintiff  some  specific  thing. 

2.  Those  Avhich  authorize  the  officer  to  proceed  to 
do  something  by  which  it  is  hoped  a  sum  of  money  may 
be  produced. 

3.  Those  which  authorize  the  officer  to  do  both 
these  things,  as  where  an  execution  in  ejectment  com- 
mands that  plaintiff  be  placed  in  possession  of  the 
premises,  and  that  11  le  officer  levy  on  sufficient  property 
to  produce  a  satisfaction  of  the  damages  accrued  to 
plaintiff  by  the  withholding  of  the  property. 

9  Burkett  v.  Clark,  46  Neb.  466. 

10  Kent  V.  Laffan,  2  Cal.  596;  McMillan  v.  Kicliar.L«,  9  Cal.  SG'r, 
70  Am.  Dec.  655. 

11  StoiU  V.  Macy,  22  C;il.  647. 


7  DEFINITIONS  AND  CLASSIFICATIONS.  §§  3,  4 

4.  Those  wliicli  coinijiaiid  the  officer  to  take  and 
deliver  to  plaiiiliiT  certain  personal  property,  and,  in 
case  it  cannot  be  found,  to  levy  on  other  property  suffi- 
cient to  satisfy  plaintiff  fr>r  the  value  of  the  property 
of  which  no  return  can  be  had. 

§  3.  Executions  in  Real  Actions.— The  executions 
referred  to  in  tlu^  preceding  section,  as  of  the  first  class, 
represent  those  cases  in  which  nothing  belonging  to 
the  def(Midant  is  taken  away  from  him.  They  com- 
mand the  plaintiff  to  be  put  in  possession  of  something 
that  belongs  to  him,  and  which,  therefore,  the  defend- 
ant has  no  right  to  retain.  The  property  of  which  pos- 
session is  to  be  given  to  the  plaintiff  is  either  real  or 
personal.  If  it  be  real  property,  the  execution  must 
confoi'in  to  the  nature  of  the  judgment  and  be  appro- 
priate to  tlie  inten^st  which  the  plaintiff  has  recovered. 
In  a  real  action,  in  which  the  seisin  or  possession  of 
lands  was  recovered,  the  writ  of  habere  facias  seisinam, 
or  writ  of  seisin  of  a  freehold,  issued.  This  '-is  a  judi- 
cial writ  issuing  out  of  the  record  of  the  judgment,  and 
directed  to  the  sheriff  of  the  county  where  the  land  lies, 
commanding  him  quod  habere  faciat  to  the  demand- 
ant seisinam  suam  de  messuagio,"  et  cetera. ^^ 

If,  in  ejectment,  only  a  chattel  interest  or  term  of 
years  be  awarded  to  plaintiff,  the  judgment  must  be 
made  available  by  a  habere  facias  possessionem,  or  writ 
of  possession  of  a  chattel  interest.*^ 

§  4.  In  Actions  for  Possession  of  Personalty. — 
"Upon  a  replevin  the  writ  of  t^xecution  is  the  writ  de 
returno  habendo;  and  if  the  distress  be  eloigned,  the  de- 
fendant shall  have  a  capias  in  withernam:  but  on  the 

12  Com.  Di.c,  tU.  Execution.  A.  2;  3  Bla.  Com.  41.3. 

13  Com.  Dig.,  tit.  Kxeeiilion,  A,  3;  3  Bla.  Com.  413. 


§  4  DEFINITIONS  AND  CLASSIFICATIONS.  8 

plaintiff's  tendering  the  damages  and  submitting  to  a 
fine,  the  process  in  withernam  shall  be  stayed.  In 
detinue,  after  judgment,  the  plaintiff  shall  have  a  dis- 
tringas to  compel  the  defendant  to  deliver  the  goods 
by  repeated  distresses  of  his  chattels;  or  else  a  scire 
facias  against  any  third  person,  in  ^^hose  hands  they 
may  happen  to  be,  to  show  cause  why  they  should  not 
be  delivered;  and,  if  the  defendant  still  continues  obsti- 
nate, then  (if  the  judgment  hath  been  by  default  or  on 
demurrer)  the  sheriff  shall  summon  an  inquest  to  ascer- 
tain the  value  of  the  goods  and  the  plaintiff's  damages; 
which  (being  either  so  assessed  or  by  the  verdict  in 
case  of  an  issue)  shall  be  levied  on  the  person  or  goods 
of  the  defendant.  So  that,  after  all,  in  replevin  and 
<letinue  (the  only  actions  for  recovering  the  specific 
possession  of  personal  cliattels),  if  the  wrongdoer  be 
very  perverse,  he  cannot  be  compelled  to  a  restitution 
of  the  identical  thing  taken  or  detained;  but  he  still 
has  his  election  to  deliver  the  goods  or  their  value — 
an  imperfection  in  the  law  that  results  from  the  nature 
of  personal  property,  which  is  easily  concealed  or  con- 
veyed out  of  the  reach  of  justice,  and  not  always 
amenable  to  the  magistrate."  ** 

It  was  in  one  case  held  that  where  in  detinue  the 
property  sued  for  had  gone  into  the  possession  of  the 
plaintiff  during  the  pendencj'  of  the  suit,  and  he  was 
found  by  the  verdict  not  entitled  thereto,  that  a  judg- 
ment for  the  return  of  the  property  to  the  defendant 
without  giving  him  an  option  to  pay  its  value  was  erro- 
neous, the  court  ju'oceeding  on  the  theory  that  in  this 
action  a  litigant,  though  found  to  be  wrongfully  in  the 
possession  of  property,  had  the  right  to  elect  to  retain 
it  on  payment  of  its  value  as  specified  in  the  judg- 

"  3  Bla.  Com.  413. 


3  DEFIXniONS  AND  CLASSIFICATIONS.  §  5 

ment.*^  Strictly  speaking,  this  is  not  true.  The 
wron<>(l()<'r  lias  no  right  to  retain  the  property.  On  the 
contrary,  a  writ  of  distringas  may  issue  for  the  purpose 
of  coercing  its  surrender/*^  and  it  is  said  that  execu- 
tion for  llie  value  of  the  property  cannot  regularly  is- 
sue until  it  appears  that  the  specific  property  cannot 
he  had.^'  In  some  parts  of  the  United  States  statutes 
have  been  enacted  authoiizing  an  execution  in  detinue 
to  direct  (he  officer  "to  take  with  him,  if  requisite,  the 
power  of  the  county,  and  seize  and  take  into  his  pos- 
session the  thing  recovered/'  *^  while  in  other  states, 
after  the  issue  of  a  distringas,  either  party  may  apply 
to  the  court  for  an  order  superseding  it,  and  authoriz- 
ing execution  to  issue  for  the  value  of  the  property.^ 


19 


§  5.  Execution  Against  the  Person.— When  the 
judgment  is  not  for  any  specific  thing,  but  simply  that 
the  plaintiff  recover  a  certain  sum  of  money,  satisfac- 
tion is  sought,  either  by  seizing  the  person  of  the 
debtor  and  imprisoning  him  until  he  pays  the  dc^bt,  or 
by  seizing  n])on  his  property,  and  either  turning  it  over 
to  the  plainlilT,  or  selling  so  much  as  may  be  necessary 
at  public  auction  and  applying  the  proceeds  to  the  dis- 
charge of  the  execution.  When  the  judgment  was  in 
favor  of  the  king  for  a  fine,  the  writ  which  authorized 
the  seizure  of  the  defendant's  person  Avas  called  a  ca- 
pias pro  fine,  A  capias  utlagatum  issued  on  a  judgment 

13  Whittiok's  Ad.  v.  Keiffcr.  ?,1  Ala.  100. 

ic  Robinson  v.  Kicliards.  4.")  Ala.  358;  Jordan  v.  Thomas,  34  Miss. 
72.  00  Am.  Doc.  387. 

17  Waito  V.  Dolby.  8  Humph.  40.j. 

13  Keith  V.  .Johnson,  1  Dana,  G04,  25  Am.  Doc.  1G7;  Code  W.  Va., 
1891.  p.  886,  sec.  3. 

19  Garland  v.  Brigg,  5  :Munf.  GO;  Code  Va.,  1SS7,  sec.  358G. 


§  6  DEFINITIONS  AND  CLASSIFICATIONS.  10 

of  outlawry  being  returned  by  the  sheriff  upon  the  ex- 
igent."^ 

A  capias  ad  satisfaciendum  is  the  writ  of  execution 
which  on  a  jiK'gment  at  the  suit  of  a  common  person 
authorizes  the  seizure  and  imprisonment  of  the  defend- 
ant. By  the  common  law,  this  writ  issued  only  in  ac- 
tions vi  et  armis;  ^^  but  it  was  allowed  in  other  actions 
by  a  variety  of  statutes.^^ 

§  6.  Execution  Against  Lands.— "By  the  common 
law,  execution  never  was  against  the  lands  or  tene- 
ments of  the  party  at  the  suit  of  a  common  person,  ex- 
cept in  the  case  of  an  heir."  '^  By  levari  facias  the 
sheriff  might  levy  on  the  goods  and  chattels  of  the  de- 
fendant and  might  also  take  the  emblements,  rents,  and 
present  profits  of  his  lands,  but  not  the  land  itself.^* 

20  See  Bouvier's  Diet,  tit.  Capias;  Com.  Dig.,  tit.  Execution,  B,  1. 

21  Com.  Dig.,  tit.  Execution,  C,  1. 

22  Tidd's  Prac.  994.  "Personill  execution  for  payment  of  debt 
was  introduced  after  execution  against  land,  and  long  after  execu- 
tion against  movables.  Nor  will  this  appear  singular  when  wo  con- 
sider that  the  debtor's  person  cannot,  like  his  land  or  movables, 
be  converted  into  money  for  the  payment  of  del)t.  And  witli  regard 
to  a  vassal  in  particular,  his  person  cannot  regularly  be  withdrawn 
from  the  service  he  owes  his  superior.  This  would  not  have  been 
tolerated  while  the  feudal  law  was  in  vigor,  and  came  to  be  in- 
dulged in  the  decline  of  the  law,  when  land  was  improved  and  per- 
sonal services  were  less  valued  than  pecuniary  casualties."  Kama's 
Law  Tracts,  354. 

23  Com.  Dig.,  tit  Execution,  C,  2;  Bingham  on  .Tudgments  and 
Executions.  108. 

24  Com.  Dig.,  tit.  Executiou,  C,  o:  3  Bouv.  Inst.  soc.  :^400;  Bing- 
ham on  .Judgments  nnd  Executions.  113:  3  Bla.  Com.  417.  The  writ 
of  levari  facias  is  to  a  limited  extent  employed  in  tlie  United  States. 
In  Indiana  it  accomplished  the  objects  usually  sought  by  a  vendi- 
tioni exponas.  Doe  v.  Cunningham,  6  Blackf.  430.  In  Delaware  it 
is  used  to  enforce  judgments  under  the  mechanics'  lien  laws,  and  to 
sell  unproductive  or  unimproved  real  estate.  Laws  of  Del.,  ed.  of 
1874,  pp.  G70,  078.  In  Pennsylvania  it  issues  to  enforce  charges 
against  lands,  such  as  mortgages,  mechanics'  liens,  and  municipal 


11  DEFINITIONS  AND  CLASSIFICATIONS.  §  G 

This  writ  was  at  law  usually  issued  only  on  judgments 
in  favor  of  the  crown.  It  was  also  emploj^ed  as  a  writ 
of  execution  against  the  goods  and  chattels  of  a  clerk. 
When  issued  against  a  clerk,  it  was  directed  to  the 
bishop  of  the  diocese,  and  after  reciting  that  the  de- 
fendant had  no  lay  fee  nor  goods  and  chattels  on  which 
a  levy  could  be  made,  it  comman<led  the  bishop  to  cause 
execution  to  be  made  of  the  goods  and  chattels  of  the 
defendant  in  his  diocese.'*'  When  issued  against  a 
clerk,  this  writ  was  styled  a  levari  facias  de  bonis 
ecclesiasticis.  A  sequestrari  facias  could  be  issued  in- 
stead of  a  levari  facias  de  bonis  ecclesiasticis,  and  ac- 
complished the  same  purpose."** 

The  statute  of  13  Edw.  I.,  c.  18  (otherwise  known  as 
the  statute  of  AVest minster  2,  c.  18),  ])rovided  that  when 
a  debt  was  recovered  or  acknowledged  in  the  king's 
court,  or  damages  awarded,  the  plaintiff  might,  at  his 
election,  have  a  writ  commanding  the  sheriff  to  deliver 
to  him  ifhe  chattels  of  the  debtor  and  one-half  of  his 
lands,  to  be  retained  until  the  debt  is  satisfied.  The 
writ  of  execution  issued  at  the  election  of  the  plaintifT, 
in  pursuance  of  this  statute,  is  called  an  elegit.''     The 

«.lia:,i.cs.  r.i-ijiiitly's  runlon's  Digest,  4S3,  4S4.  (>o.i,  r)."4.  1089;  Hart 
V.  Iloiiiiller,  lili  Pa.  St.  3".).  Peutlaud  v.  Kelly.  0  Watts  &  S.  4S3. 
This  radical  difference  between  the  fomiuon  law  and  the  American 
writ  of  levari  facias  will  be  observed,  namelj-,  that  the  former  au- 
thorized the  taking  of  chattels  and  the  products  and  profits  of  real 
estate,  while  the  latter  is  not  directed  against  chattels  nor  against 
the  rents  nor  profits  of  lands,  but  to  authorize  the  sale  of  the  land 
itself.  In  Pennsylvania  and  Delaware,  if  the  rents  and  profits  of 
lands  for  seven  years  be  adjudged  sulticieut  to  pay  the  debt,  '"the 
lands  are  extended  by  the  writ  of  libciari  facias  and  possession 
given  to  the  creditor."  3  Bouv.  lust.,  sec.  33'J4;  Laws  of  Del.,  ed.  of 
1874,  p.  G82;  Brightly's  l»urdon's  Digest,  »;48.  Or>:J-r.(;S. 

25  Bouvier's  Diet,  tit.  Levari  Facias;  :;  lila.  (,'oni.  418. 

26  Bingham  on  Judgments  and  Executions,  114. 

2T  Porter's  Lessee  v.  Cocke,  Peck.  30,;  Bingham  on  .Tudgments  and 
Executions,  108;  Com.  Dig.,  tit.  Executious,  C,  14;  3  lUa.  Com.  418. 


§  7  DEFINITIONS  AND  CLASSIFICATIONS.  ]2 

extendi  facias,  or  extent,  is  a  writ  of  execution  by  vir- 
tue of  which  tlie  goods,  lands,  and  person  of  the  defend- 
ant may  at  once  be  seized.  Under  the  elegit,  a  moiety 
only  of  the  lands  of  defendant  was  appropriated  to  the 
satisfaction  of  the  writ,  and  this  appropriation  was  but 
temporary.  The  plaintiff  thereby  became  a  tenant  by 
elegit,  and  so  continued  until  by  the  profits  of  the 
lands,  or  otherwise,  a  satisfaction  of  the  judgment  was 
produced  wlien  his  estate  terminated,  and  the  defend- 
ant again  became  seised  of  the  whole.  Under  an  ex- 
tendi facias  or  extent  "the  sheriff  is  to  cause  the  lands 
to  be  appraised  to  their  full  extended  A^alue  before  he 
delivers  them  to  the  plaintiff,  that  it  may  be  certainly 
known  how  soon  the  debt  will  be  satisfied."  '** 

§  7.  Execution  Against  Chattels  Persona!.— It  will  be 
seen  from  the  preceding  section  that  all  the  forms  of 
execution  authorizing  a  levy  on  lands  or  on  the  profits 
.)f  land  also  authorized  a  seizure  of  the  goods  and  chat- 
tels of  the  defendant.  TVliere  neither  lands  nor  their 
profits  were  sought  to  be  subjected  to  the  satisfaction 

28  3  Bla.  Com.  420.  "Land,  when  left  free  to  commerce  by  the 
<lissoIutiou  of  the  feudal  fetters,  was  of  course  subject  to  execu- 
rion  for  payment  of  debt.  This  was  early  introduced  with  relation 
to  the  king.  For  from  Magna  Charta  it  appears  to  have  been  the 
king's  privilege,  tailing  goods  and  chattels,  to  take  possession  of  the 
laud  till  the  debt  was  paid.  And  from  the  same  chapter  it  appears 
that  the  like  privilege  is  bestowed  upon  a  cautioner,  in  order  to 
.Iraw  payment  of  what  sums  he  is  obliged  to  advance  from  tlie  prin- 
<-ipaI  debtor.  Bv  the  statute  of  merchants  the  same  privilege  is 
given  to  merchants;  and  by  13  Edw.  L,  c.  18,  the  privilege  is  com- 
municated to  creditors  in  general,  but  with  the  following  remark- 
able limitation,  tliat  they  are  allowed  to  possess  the  half  only  of  the 
land.  By  this  time  it  was  settled  that  the  military  vassal's  power 
of  aliening  reached  the  half  only  of  his  freehold,  and  it  was  thought 
iii.-ongruous  to  take  from  the  debtor  by  force  of  execution  what  he 
himself  could  not  dispose  of,  even  for  the  most  valuable  considera- 
tion."    Kame's  Law  Tracts,  339. 


13  DEFIXITIOXs  AND  CI.AS-^IFICATIONS.  §  7 

of  tho  jiulgmont,  a  writ  of  fieri  facias  was  issued.  Un- 
der this  writ  the  sheriff  was  authorized  to  seize  and  sell 
every  chattel  thinj^  beloniiin;;-  to  the  defendant  and  not 
exempt  from  execution.^*  This  is  the  proper  writ  in 
all  cases  where  a  judc^ment  for  money  is  sought  to  be 
enforced  by  the  seizure  and  sale  of  personal  property, 
irrespective  of  the  character  of  the  action  or  proceeding 
in  which  such  judgment  was  entered/^**  The  judgment 
may,  however,  entitle  the  plaintiff  to  the  possession  of 
personal  property,  and,  in  the  event  that  possession 
cannot  be  had,  then  to  its  value  as  fixed  by  the  judg- 
ment, in  which  case  it  may  become  necessary  to  issue  a 
writ  of  fieri  facias;  but  it  is  said  that,  upon  a  judgment 
in  detinue,  it  is  irregular  to  issue  the  writ  of  fieri  facias 
until  a  distringas  has  first  been  issued  and  returned, 
and  from  such  return  it  appears  that  the  property  can- 
not be  had.^* 

An  important  difference  existed  in  the  methods  by 
which  real  and  personal  property  were  appropriated 
toward  the  satisfaction  of  executions.  Care  was  taken 
that  the  defendant's  realty  should  not  be  sacrificed 
through  a  forced  sale.  Under  the  elegit  the  title  re- 
mained in  the  defendant,  while  the  "actual  profits  of  a 
moietj'  were  applied  to  the  payment  of  the  debt.  Under 
the  extendi  facias  the  lands  of  the  debtor  were  first 
appraised,  and  then  set  off  to  the  creditor  at  their  ap- 
prais(Hl  value.  Whichever  writ  the  plaintiff  elected  to 
take  out,  the  defendant  might  rest  assured  that  no 
more  of  his  real  estate  could  be  taken  than,  in  the  judg- 
ment of  a  disinterested  jury  of  his  neighbors,  was  equiv- 
alent in  value  to  the  amount  of  the  debt.     In  regard  to 

28  Bingham  on  .Tudgments  and  Executions,  III. 
•10  Elmer  v.  Elmer,  loO  Pa.   St.  205;  Adriauce  Co.   v.  Hoiskel,  8 
App.  D.  C.  240. 

31  Waite  V.  Dolbj-,  8  Humph.  40(1. 


§  8  DEFINITIONS  AND  CLASSIFICATIONS.  14 

personal  property,  no  such  solicitude  was  ever  mani- 
fested. The  law  authorized  it  to  be  seized  and  sold  at 
jHiblic  auction  for  whatever  it  mighf  chance  to  bring. 
This  favoritism  toward  real  estate  has  in  the  major 
portion  of  the  United  States  ceased  to  exist;  but  in 
some  of  the  states  the  policy  of  appraising  lands  and 
then  setting  them  otf  to  the  creditor  is  still  pursued, 
while  in  otliers  an  appraisement  is  made,  and  the  sale 
is  not  confirmed  unless  it  produces  a  specified  percent- 
age of  the  apx)raised  value. 

.^  8.  Writs  Carrying  Executions  into  Effect;  Proceed- 
ings for  Contempts. —  Under  the  common-law  form  of 
procedure.  cerLaiii  writs  were  sometimes  issued  to  com- 
pel or  perfect  the  execution  of  the  original  writ.  The 
most  familiar  of  these  is  the  venjditioni  exponas.  This 
is  the  writ  which,  after  a  sheriff  had  levied  on  property 
under  a  fic^'i  facias,  issued  to  compel  liim  to  make  a  sale 
of  such  property.^^  The  liberate  is  the  writ  whicli, 
after  the  appraisement  of  lands,  tenements,  and  chat- 
tels under  an  extendi  facias,  commands  the  sheriff  to 
deliver  legal  possession  of  them  to  the  plaintiff. ^^  But 
under  this  writ  actual  possession  cannot  be  obtained. 
It  is  still  necessary  to  resort  to  ejectment  unless  actual 
possession  is  voluntarily  relinquished.^* 

We  shall  hereafter  show  that  a  most  efficient  mode 
of  compelling  obedience  to  a  decree  in  equity  was  by 
attachment  and  punishment  as  for  contempt  of  the 
court  of  a  noncompliance  Avith  its  directions.  There 
can  be  no  doubt  that  this  mode  of  proceeding  would 
have  been  equally  efficient  had  it  been  resorted  to  at 

"2  Bouv.  r>k-t.;  Com.  Dis..  tit.  Execution,  C,  8. 

33  Bonv.  Diet.:  Binsham  on  .Tiulgments  and  Executions,  115. 

24  BintrhMiii  on  .Tudgnients  and  Executions.  233. 


15  DEFINITIONS  AND  CLASSIFICATIONS.  (  8 

law;  and,  in  all  cases  whore  it  was  clearly  within  the 
power  of  the  defendant  to  obey  or  satisfy  the  judg- 
ment, no  unjust  hardship  could  have  resulted   from 
compelling  him  to  do  so  by  arrest  and  imprisonment. 
We  believe  no  instance  can  be  found,  however,  in  which 
it  has  been  adjudged  that  a  defendant  could,  at  the 
common  law,  be  compelled  to  aid  the  plaintiff  or  the 
officer  charged  with  the  execution  of  a  writ,  or  other- 
wise to  satisfy  the  judgment,  except  by  submitting  to 
ihe  lawful  acts  of  such  officer.     If  the  defendant  was 
in  possession  of  either  real  or  personal  property  for  • 
which  the  plaintiff  had  recovered  judgment,  the  latter 
was  entitled  to  take  out  execution  and  place  it  in  the 
liands  of  the  proper  officer,  who  on  his  part   could  ex- 
ert whatever  power  the  particular  writ  authorized;  but 
the  defendant  could  not  be  called  before  the  court  and 
]>iinished  as  for  a  contempt  because  he  did  not  actively 
<^xert  himself  in  surrendering  the  property  or  disclos- 
ing its  whereabouts  to  the  officer,  so  that  the  latter 
might  the  more  easily  and  surely  satisfy  the  commands 
of  his  writ.*"*^     On  the  other  hand,  neither  the  defend- 
ant nor  any  third  person  had  any  right  to  obstruct  the 
officer  or  to  interfere  with  his  possession  if  he  had 
taken  it  pursuant  to  the  commands  of  his  writ,  and 
Avhosoever  did  so  was  guilty  of  a  contempt  of  court  and 
subject  to  punishment  therefor.'"'"  In  the  United  States 
various  courts,  authorized  to   exercise   jurisdiction  in 
suits  between  husband  and  wife  either  for  divorce  or 
the  purpose  of  compelling  liim  to  make  provision  for 

••'s  CleniL'uts  v.  Tillman,  79  Ga.  451:  11  Am.  St.  Rop.  441:  Yott  v. 
The  People.  91  111.  11;  Hoit  v.  The  Teople,  95  III.  109. 

•■'«  Matter  of  T.(.ewenthal.  74  Cal.  109:  5  Am.  St.  Rep.  424:  nunt- 
iii.u'ton  V.  McMahou,  48  Conn.  174;  People  v.  Bumble,  74  111.  08;  Knott 
V.  People,  S3  111.  5o2;  Frees  v.  Perch,  49  Iowa,  351;  Cromwell  v. 
Uwings,  7  liar.  &  J.  55;  Sabin  v.  Fogarty,  70  Fed.  Rep.  482. 


§  Sa  DEFINITIONS  AND  CLASSIFICATIONS.  IS 

her  support  or  that  of  her  children,  have  been  held  to- 
be  entitled  to  punish  as  contempts  disobedience  of 
their  orders  for  the  payment  of  alimony,  at  least  when 
it  appears  that  the  defendant  has  ability  to  comply 
therewith.^'' 

§  8  a.  Execution  of  Decrees. — It  is  well  known  that 
decrees  in  equity  are  less  inflexible  than  judgments  at 
law  in  respect  to  their  capacity  to  afford  the  relief 
adapted  to  the  vast  and  constantly  shifting  varieties 
of  circumstances  demanding  legal  redress.  The  boast 
of  those  who  have  administered  equity  jurisprudence,, 
that  its  remedies  may  be  so  employed  as  to  give  com- 
plete relief  to  each  complainant,  would  be  palpably 
vain-glorious  had  they  not  devised  modes  of  enforcing 
their  decrees  sufficiently  stringent  to  compel  obedience 
and  sufficiently  varied  to  answer  every  conceivable 
emero'encv.  We  according! v  find  the  chancellors  as- 
serting  in  the  most  comprehensive  terms  their  power 
to  devise  remedies  adequate  to  the  enforcement  of  the 
various  decrees  which  they  may  be  required  to  make 
in  order  to  exact  equity  from  all  litigants  brought  with- 
in their  jurisdiction."*  Nevertheless,  the  writs  devised 
to  compel  the  satisfaction  or  performance  of  decrees  in 
equity  are  less  numerous  than  are  the  writs  formerly 
employed  to  obtain  satisfaction  of  judgments  at  law. 
This  is  largely  due  to  the  fact  that  courts  of  equity 

3T  Ex  parte  Spencer,  82  Cal.  400,  7  Am.  St.  Rep.  26G;  Goss  v.  Ooss, 
29  Ga.  109;  Lewis  v.  Lewis,  80  Ga.  706,  12  Am.  St.  Rep.  281;  Buck 
V.  Buck,  GO  111.  105;  Haines  v.  Haines,  S^  Mich.  138;  Park  v.  Park, 
80  N.  Y.  1.56;  Andrews  v.  Andrews,  62  Vt.  495;  Staples  v.  Staples, 
87  Wis.  .^!)2. 

3«  Kersliaw  v.  Thompson,  4  Johns.  Oh.  009;  Newman  v.  Chapman, 
2  Hand.  93,  14  Am.  Dec.  760;  White  v.  Hampton,  13  Iowa,  26."; 
Whipple  V.  Farrar,  3  Mich.  436,  64  Am.  Dec.  99;  Torrell  v.  AUison,. 
21  Wall.  289. 


17  DEFINITIONS  AND  CLASSIFICATIONS.  §  8* 

often  issue  a  coirimissiou  or  authorization  to  some  of 
their  officers,  or  to  some  person  or  persons  selected  by 
them,  and  tliereby  invest  such  officer  or  persons  with 
authority  to  do  for  and  as  the  acts  of  the  defendant 
the  acts  required  to  be  done  by  the  decree. 

In  equity  jurisprudence,  as  modified  by  statute  in 
England  and  in  many  of  the  states,  certain  classes  of 
decrees  are  self-executing,  and  need  no  writ  or  proceed- 
ing for  their  enforcement,  as  where  a  decree  operates 
to  transfer  a  title  from  one  party  and  vest  it  in  an- 
other.'''* Where  a  decree  is  not  self-executing,  it  in 
effect  commands  the  defendant  to  do  or  not  to  do  some 
act  or  acts  specifically  designated  by  such  decree. 
Formerly  the  court  did  not  undertake  to  do,  or  eveh  to 
cause  its  officers  to  do,  the  acts  which  it  had  com- 
manded to  be  done.  It  accomplished  its  purposes  by 
such  a  course  of  proceeding  toward  and  with  the  de- 
fendant and  his  property  that  a  proper  regard  for  his 
own  comforts  and  interests  led  him  to  conform  to  its 
idea  of  equity  as  exijressed  in  the  decree.  At  the  pres- 
ent time,  when  the  acts  which  the  defendant  is  required 
to  do  are  of  such  a  nature  that  another  may  do  them 
for  him,  the  court  usually  authorizes  its  master,  com- 
missioner, or  other  officer  to  execute  the  decree  for  and 
as  the  act  of  the  defendant.  This  authorization  is  sanc- 
tioned by  statute  in  most  of  the  states.  The  national 
courts,  however,  have  not  been  vested  with  such  stat- 
utory authority,  and  must  enforce  their  decrees  in  some 
mode  warranted  by  their  own  rules  of  proceeding  or  by 
the    practice   of    the    English   court   of    chancery."*** 

89  romeroy's  Eq.  Jur.,  sees.  135,  1317,  with  note  referring  to  stat- 
utes; Seton's  Forms  of  Decrees,  Judgments,  and  Orders,  4th  ed., 
527-538,   1329. 

*o  romeroy's  Eq.  Jur.,  sec.  1317;  Ingersoirs  Barton's  Suit  In 
Equity,  153. 

Vol.  J.— 2 


§  8a  DEFINITIONS  AND  CLASSIFICATIONS.  IS 

Whether  any  special  statute  has  been  adopted  on  the 
subject  or  not,  the  various  courts  of  equity  in  the 
United  States  have  power  to  enforce  their  decrees  by 
the  same  writs  and  proceedings  as  were  allowable  in 
the  courts  of  like  jurisdiction  in  England  immediately 
preceding  our  separation  from  that  country.*^ 

When  the  coercive  powers  of  the  court  of  chancery 
were  sought  to  be  invoked,  the  first  step  of  the  com- 
plainant was  to  procure  the  issuing  and  service  of  a 
writ  of  execution.  This  was  a  mandate  under  the 
great  seal,  commanding  the  defendant  to  do  the  acts 
required  of  him  by  the  decree.'*^  This  writ  is  now  ob- 
solete. Instead  of  procuring  its  issuance,  the  complain- 
iint  now  obtains  a  copy  of  the  decree  and  serves  it  upon 
the  defendant, who  thereupon  becomes  bound  to  comply 
therewith.  Under  the  English  practice  the  decree  must 
state  the  time  after  its  service  within  which  the  act 
must  be  done,  and  the  copy  served  must  bear  an  indorse- 
ment notifying  the  defendant  that  if  he  neglects  to  obey 
the  decree  by  the  time  therein  designated,  he  will  be 
liable  to  arrest  under  a  w^it  of  attachment  "issued  out 
of  the  high  court  of  chancery  or  by  the  sergcant-at-arms 
attending  the  same  court,"  and  will  also  be  liable  to 
Ijave  his  estate  sequestered  for  the  purpose  of  compell- 
ing his  obedience.*'*^  After  the  copy  of  the  decree  has 
been  duly  served,  and  the  time  limited  for  compliance 
therewith  has  expired  without  such  compliance,  the 
complainant  is  entitled  to  a  writ  of  attachment.  This 
writ  is  directed  to  the  sheriff  or  some  other  competent 
officer  of  the  jurisdiction  in  which  the  defendant  is 
likely  to  be  found,  requiring  hini  to  attach  the  body  of 

41  White  V.  Oeraerdt.  1  Edw.  Ch.  33G;  .Tones  v.  Boston  Mill  Cori)., 
4  Pick.  507,  16  Am.  Dec.  .3.58. 

42  Lube's  Eq.  PL.  174;  Daniell's  Ch.  Pr.,  4th  Am.  ed.    104.3. 

43  Daniells  Ch.  Pr.,  4th  Am.  ed.,  1043. 


19  DEFINITIONS  AND  CLASSIFICATIONS.  §  8a 

such  defendant  and  have  him  before  the  court  at  a  time 
designated,  to  answer  for  an  allej^ed  contempt.^  Un- 
der this  writ  the  defendant  may  be  arrested  and  lodged 
in  prison,  and  snlTercMl  to  remain  there  until  he  has 
purged  himself  of  his  contemj^t  by  obedience  to  the  de- 
cree.^ 

Arrest  and  imprisonment,  including  close  confine- 
ment and  putting  in  irons,  seem,  down  to  the  end  of  the 
reign  of  Charles  I.,  to  have  constituted  the  sole  means 
of  compelling  obedience  to  a  decree.***  These  means 
might  prove  inefficient  because  the  defendant  was 
already  in  prison,  or  could  not  be  found  or  appre- 
liended,  or,  upon  being  arrested  and  imprisoned,  pre- 
ferred remaining  in  custodj''  to  obeying  the  decree.  If 
the  defendant  was  already  in  prison,  a  writ  of  habeas 
forpus  cum  causus  *''  could  be  obtained,  whereby  the 
keeper  of  the  prison  was  commanded  to  bring  the  pris- 
oner into  court. 

If  the  defendant  cannot  be  found,  a  return  of  non  est 
inventus  is  made.  Upon  this  return,  when  the  defend- 
ant cannot  be  found,  or  upon  showing  that  he  is  in 
prison,  obstinate  and  disobedient,  where  he  has  been 
found,  a  writ  or  commission  of  sequestration  may  is- 
sue.'*® This  writ  is  directed  to  certain  persons  therein 
named  Cusually  foui*).  and  empowers  them  to  enter  upon 
the  real  estate  of  the  disobedient  person,  "and  to  re- 

"•»  Danieirs  Ch.  Pr.,  4th  Am.  ed.,  1046,  463;  L\ib6's  Eq.  PL,  174: 
Injrer.soH's  Barton's  Suit  in  E«iuity,  152.  If  the  defendant  was  a 
corpora tion,  and  therefore  incapable  of  beins:  arrested,  its  action 
was  coerced  by  a  distrincns.  Tliis  writ  was  directed  to  the  shorifT. 
and  commanded  him  to  mal^e  distress  of  the  lands,  tenements, 
STOods.  and  chattels  of  the  defendant  within  his  bailiwick. 

^5  Daniell's  Ch.  Pr..  4th  Am.  ed..  1047,  1032. 

<o  .«iP(>nfe's  Ch.  .Tur.,  391. 

*■'  Elvard  v.  Warren.  2  Ch.  R.  151. 

4SEOSS  V.  Colville.  3  CaH,  382;  Speuce's  Ch.  Jur.,  391;  Lub6's  Ea. 
PI.  176. 


§  Sa  DEFINITIONS  AND  CLASSIFICATIONS.  20 

ceive,  sequestrate,  and  take  the  rents  and  profits  there- 
of, and  also  his  personal  estate,  and  keep  the  same  un- 
der sequestration  in  their  hands  until  he  shall  have  per- 
formed the  act  required  and  cleared  his  contempt."'** 
If  the  sequestrators  ascertain  and  return  that  the  de- 
fendant is  a  beneficed  clerk,  without  lay  property,  a 
writ  of  sequestrari  facias  de  bonis  ecclesiasticis  may 
issue.  This  is  directed  to  the  bishop  of  the  diocese,  and 
under  it  the  defendant's  benefice  may  be  sequestered.^* 
If  it  becomes  necessary  or  advisable  for  the  sequestra- 
tors to  sell  personal  effects  seized  by  them,  such  sale 
will  be  authorized  by  the  court  on  proper  application 
therefor.^^ 

If  the  decree  required  the  delivery  of  the  possession 
of  lands,  a  mandatory  injunction  was  sometimes  issued, 
commanding  such  delivery,  where  defendant  remained 
obstinate  in  prison,  and  if  this  were  disobeyed,  a  com- 
mission issued  to  justices  of  the  peace  to  put  the  com- 
plainant into  possession.^^  If,  when  a  commission  is- 
sued to  sequestrators,  or  others,  under  which  it  was 
necessary  for  them  to  take  possession  of  real  property, 
they  were  unable  to  otlierwise  obtain  possession,  a  writ 
of  assistance  issued  in  their  aid.®^  Where  the  surren- 
der of  the  possession  of  lands  to  a  complainant  or  other 
person  was  ordered  or  decreed,  this  writ  also  issued.^* 

*9Daniell's  Ch.  Pr.,  4th  Am.  cd.,  10."0.  1051:  Tatham  v.  Parker, 
1  Sninle  &  G.  513;  Seton's  Forms  of  Decrees,  Judgments,  and  Orders, 
4th  ed.,  1577. 

60  Daniell's  Ch.  Pr.,  4th  Am.  ed.,  1051. 

Bi  Danioirs  Ch.  Pr..  4th  Am.  ed..  1054;  Seton's  Forms  of  Decrees, 
.Tudgmonts.  and  Orders,  4th  ed.,  1.582. 

02  Speiice's  Ch.  .Tur.,  392:  T>nhe'R  Eq.  PI.  177. 

B3  Daniell's  Ch.  Pr.,  105<;:  Spence's  Ch.  .Tur..  .302:  Seton's  Forms  of 
Der-rees,  .Judgments,  and  Orders,  4th  ed.,  15G2;  Pelham  v.  New- 
castle, 3  Swan,  2S9.  note. 

84  Ludlow  V.  Johnson,  Ilopk.  Ch.  231;  Kershaw  v.  Thompson,  4 
Johns.  Ch.  609. 


21  DEFINITIONS  AND  CLASSIFICATIONS.  §  8a 

This  writ  is  now  obsolete  under  the  English  practice. 
It  was  issued  to  put  a  party  in  possession,  upon  service 
of  a  cop3'  of  the  decree,  and  without  the  prosecution  of 
any  proceedings  for  contempt.  It  is  directed  to  the 
sheriff  of  the  county  wherein  the  lands  lie,  and  com- 
mands him  to  put  plaintiff  into  possession  pursuant  to 
the  decree.^^  In  England  the  functions  of  a  writ  of  as- 
sistance are  now  performed  by  the  writ  of  possession.*^ 
Where  a  decree  is  for  the  payment  of  money,  statutes 
and  rules  of  court  have  been  enacted  or  adopted,  both 
in  England  and  in  this  country,  giving  authority  to 
issue  the  writs  appropriate  for  the  enforcement  of  a 
like  judgment  at  law.  Under  these  statutes  satisfac- 
tion of  a  decree  may  be  sought  by  an  elegit,  a  fieri  fa- 
cias, or  a  capias  ad  satisfaciendum,  in  any  case  where 
such  writ  would  be  proper  had  the  recovery  been  at  law 
instead  of  in  equity.^''  In  England,  if,  upon  return  of 
an  elegit  or  fieri  facias,  it  appears  that  defendant  is  a 
beneficed  clerk,  without  lay  property  subject  to  the 
writ,  the  plaintiff  may  have  "one  or  more  writs  of  fieri 
facias  de  bonis  ecclesiasticis,"  ^^  whereby  the  sheriff  is 
authorized  to  levy  the  damages  and  costs  out  of  the 
defendant's  ecclesiastical  goods.  Final  process  to  en- 
force decrees  is  provided  for  by  the  eighth  and  ninth 
rules  of  practice  for  the  courts  of  equity  of  the  United 
States.  Under  these  rules  an  execution  on  a  decree 
for  the  payment  of  money  may  be  in  the  form  used  in 

66  Daniell's  Cb.  Pr.  10G2. 

66  Seton's   Forms  of    Decrees,  Judgments,   and    Orders.   4th   ed., 

1503. 

BT  Daniell's  Cli.  Pr..  4tli  Am.  ed.,  1042;  Brockway  v.  Copp.  2  Paige. 
580:  Bryson  v.  Petty,  1  Bland,  Tn3;  Shackelford  v.  Apperson.  6 
Gratt.  453;  Seton's  Forms  of  Decrees,  Judgments,  and  Orders,  4th 
ed.,  1555.  15G0,  1561. 

68  Daniell's  Ch.  Pr.,  lOGo. 


§  9  DEFINITIONS  AND  CLASSIFICATIONS.  22 

actions  of  assumpsit  at  common   law.     Other  decrees 
are  enforced  by  attachment  and  sequestration.'"'^ 

§  9.  Classification  of  the  Subject. — We  have  now  de- 
scrij^ed  the  principal  writs  of  execution  employed  at 
law  or  in  equity,  or  introduced  by  statutes.  Most  of 
the  terms  which  we  have  attempted  to  define  have 
ceased  to  have  any  place  in  the  jurisprudence  of  the 
greater  portion  of  the  United  States.  Bentham  re- 
proached the  legal  procedure  of  his  time  by  the  follow- 
ing assertion — an  assertion  no  doubt  well  supported  in 
fact:  "In  the  sciences  we  always  go  on  simplifying  the 
processes  of  our  predecessors;  in  jurisprudence  we  al- 
ways go  on  rendering  them  more  complicated.  The 
arts  are  perfected  by  producing  greater  effects  with 
more  easy  means;  jurisprudence  is  deteriorated  by  mul- 
tiplying means  and  diminishing  effects."*^^     The  Amer- 

B9  These  rules,  8  and  9,  are  as  follows: 

Rule  8:  Final  process  to  execute  any  decree  may,  if  the  decree 
be  solely  for  the  payment  of  money,  be  by  writ  of  execution,  in  the 
form  used  in  the  circuit  court  in  suits  at  common  law  in  actions  of 
assumpsit.  If  the  decree  be  for  the  performance  of  any  specific 
act,  as,  for  example,  for  the  execution  of  a  conveyance  of  land  or 
the  delivering  up  of  deeds  or  other  documents,  the  decree  shall,  in 
all  cases,  prescribe  the  time  within  which  the  act  shall  be  done,  of 
which  the  defendant  shall  be  bound  without  further  service  to  take 
notice;  and  Ui)on  affidavit  of  the  plaiuliff,  filed  in  the  clerk's  office, 
that  the  same  has  not  been  complied  with  within  the  prescribed 
time,  the  clerk  shall  Issue  a  writ  of  attachment  as^alnst  the  delin- 
quent party,  from  which,  if  attached  thereon,  he  shall  nat  be  dis- 
charged, unless  upon  a  full  compliance  with  the  decree  and  the  pay- 
ment of  all  costs,  or  upon  a  special  order  of  the  court  or  of  a  judge 
thereof,  upon  motion  and  affidavit,  enlarging  the  time  for  the  per- 
formance tliereof.  If  the  delinquent  party  cannot  be  found,  a  writ 
of  sequcstnition  shall  issue  against  his  estate  upon  the  return  of  non 
est  inventus,  to  compel  obedience  to  the  decree. 

Rule  9:  When  any  decree  or  order  is  for  the  delivery  of  possession 
upon  proof  made  by  affidavit  of  a  demand  and  refusal  to  obey  the 
decree  or  order,  the  party  prosecuting  the  same  shall  be  entitled  to 
a  writ  of  assistance  from  the  clerk  of  the  court. 

60  Bentham's  Judicial  Evidence,  by  Dumout,  ed.  of  1825,  p.  5. 


23  DEFIXJTIONS  AX1>  CLASSIFICATIONS.  5  9 

ican  law  of  executions  is  comparatively  free  from  this 
and  similar  reproaches/  When  a  judgment  is  for  the 
recovery  of  money,  we  do  not,  in  most  of  the  states,  re- 
sort to  one  form  of  execution  to  reach  real  estate  and 
another  form  to  reach  personal  property;  but  by  one 
writ  the  sheriff  is  commanded  to  levy  upon  the  personal 
I)roperty  of  the  defendant,  and  if  sulficient  personal 
proi)erty  cannot  be  found,  then  upon  the_real  estate. 
In  cases  where  the  stattite  so  authorizes,  the  writ  may 
contain  a  clause  directing  the  seizing  and  imprison- 
ment of  the  defendant. 

In  the  following  pages  we  shall  not  undertake  to 
treat  separately  of  each  of  the  several  writs  of  execu- 
tion heretofore  named,  but  shall  classify  and  consider 
our  subject  as  follows:  Part  1  will  treat  of  executions, 
writs,  and  proceedings  whose  object  is  to  obtain  the  sat- 
isfaction of  a  judgment  or  decree  out  of  the  defendant's 
estate,  real  and  personal,  or  to  compel  obedience  to  a 
decree  in  other  respects  than  the  payment  of  a  sum  of 
money;  part  2,  of  executions  against  the  person  of  de- 
fendant; and  part  8,  of  executions  to  recover  specific 
property  adjudged  to  belong  to  the  plaintiff.  In  each 
of  these  parts  we  shall  endeavor  as  far  as  possible  to 
dispose  of  various  questions  in  the  order  in  which  they 
naturally  present  themselves  in  the  execution  of  the 
writ. 


ISSUING  THE  ORIGINAL  EXECUTION.  24 


CHAPTER  II. 

ISSUING  THE  ORIGINAL  EXECUTION. 

FIRST.-ISSUING,  WHAT  IS,  AND  HOW  APPLIED  FOR. 

§  9a.  Issuing,  what  is. 

§  9b.  The  mode  of  procuring. 

SECOND— OF  THE  COURTS  THAT  MAY  ISSUE  IT. 

§  10.  Courts  that  may  issue— General  rule. 

§  11.  Of  American  courts. 

§  12.  Courts  ceasing  to  exist. 

§  13.  RemoAal  of  record  from  one  court  to  another. 

^  14.  On  transcripts  from  other  courts. 

§  15.  Effect  of  issue  from  wrong  court. 

THIRD.— OF  THE    JUDGMENTS  ON  WHICH  IT  MAY  ISSUE. 

§  16.     General  rule  as  to  judgments. 

§  17.     Orders  and  rules  of  court. 

§  18.    Lost  or  mutilated  judgment  records. 

§  19.     Satisfied  or  merged  judgments. 

§  20.    Void  judgments. 

FOURTH.-FOR   AND  AGAINST  WHOM,  AND  BY  WHOM  IS- 
SUED. 

§  21.     Who  may  sue  out,  and  his  remedies  when  denied  its  issu- 
ance. 
§  22.     Against  whom  may  issue. 
§  23.    By  whom  issued. 

FIFTH.— TIME  FOR  ISSUING. 

§  24.    The  earliest  time  for  issuing. 

§  25.     Consequence  of  premature  issuing. 

§  26.  Consequence  of  issuing  before  expiration  of  stay  by  agree- 
ment. 

§  27.    The  latest  time  for  issuing. 

§  27a.  Issuing  on  motion,  instead  of  resorting  to  scire  facias. 

§  27b.  Leave  of  the  court,  when  discretionary. 

§  28.    Computing  the  time  within  which  execution  may  issue. 

§  29.    Validity  of  executions  on  dormant  judgments. 

§  30.  Validity  of  executions  on  dormant  judgments  as  between  the 
parties. 


25  ISSUING   1  HE  ORIGINAL  EXECUTION.  §  9» 

SIXTH.— SUSPENSION    OF  THE   RIGHT    TO   ISSUE    EXECU- 
TION. 
§  31.     Of  the  right  to  Issue  several  writs  at  the  same  time, 
§  31a.  Loss  of  right  to  issue  because  of  a  levy  or  other  proceeding 

under  a  writ  already  i.ssued. 
§32.     Stay  of  exceutiou  other  than  by  appellate  proceedings. 
§  32a.  Stay  of  executiuu  as  the  result  of  api)ellate  proceedings. 
§33.     Execution  issut  d  in  violation  of  a  slay. 
§34.     By  slay  laws,  consliiutionality  of. 
§  3o.     By  death  of  sole  plaintiff  or  defendant. 
§  3t3.     By  death  of  one  of  several  plaintiffs  or  defendants. 
§  37.     Abateuient  of  writ  by  death. 

SEVENTH.— ENFORCEMENT  OF  DECREES. 

§  37a.  Issuing  execution. 

§  37b.  Proceedings  to  enforce  decrees  by  attachment  and  punish- 
ment for  contempt. 

§  37c.  Issuing  writ  of  sequestration. 

§  37d.  Writs  of  assistance,  upon  what  decrees  and  for  and  against 
whom  may  be  issued. 

§  37e.  Writs  of  assistance,  proceedings  to  obtain. 

§  9  a.  Issuing  the  Writ,  What  is. — Before  proceeding 
to  consider  other  questions  connected  with  the  "issuing 
of  iin  execution,''  it  is  proper  to  ascertain  what  is  meant 
by  these  terms.  A^arious  rights  are  by  law  made  depen- 
dent upon  the  issuing  of  an  execution,  and  hence  the 
materiality  of  the  inquiry  when  the  writ  may  be  deemed 
to  have  issued.  Like  most  other  writings,  something  is 
<'ssential  beyond  a  mere  matter  of  form.  It  is  not  suf- 
ficient that  the  paper  appear  to  have  proceeded  from  a 
competent  court;  to  be  based  upon  a  valid,  unsatisfied 
judgment;  to  be  signed  and  sealed  by  the  proper  officer; 
and  to  contain  all  the  written  elements  of  an  execution. 
These  are  mere  condition.*:  precedent  to  the  issuing  of 
the  writ.  The  object  of  the  writ  is  to  command,  or,  at 
least,  to  authorize,  some  officer  or  other  duly  selected 
person  to  enforce  the  judgment,  and  this  authorization 
or  command  is  not  comph^te  until  the  writ  has  been  <!<'- 
livered  to  him,  actually  or  constructively,  and  for  the 


§  9a  ISSUING  THE  ORIGINAL  EXECUTION.  2^ 

purpose  of  having  him  obey  its  command.  Where  awrit 
is  delivered  to  an  officer,  but  accompanied  with  instruc- 
tions, express  or  implied,  that  he  shall  merely  hold  it  in 
his  hands,  until  he  receives  further  directions,  or  until 
some  other  writ  against  the  same  defendant  is  about 
to  be  placed  in  the  hands  of  the  same  officer,  it  is,  as 
against  all  persons  but  the  defendant, fraudulent  and  of 
no  effect  (post,  section  20G),  though  perhaps  as  against 
the  defendant  himself  it  may  be  deemed  issued  and  in 
effect.  It  is  clear,  however,  that  the  mere  making  out 
of  an  execution  in  proper  form  by  the  clerk  cannot, 
while  it  remains  in  his  office,  be  an  issuing  of  it,^  nor  is 
such  issuing  consummated  merely  by  delivering  it  to 
the  plaintiff.  So  long  as  it  remains  in  his  possession  it 
is  not  issued.  It  must,  therefore,  be  delivered  to  an 
officer  authorized  to  act  under  it,  and  with  the  inten- 
tion that  he  shall  so  act.^  Probably,  if  it  is  transmitted 
to  him  by  mail,  it  may  be  regarded  as  delivered  at  the 
time  when  the  plaintiff  parts  with  possession  of  it  by 
depositing  it  in  the  postoffice.*  But  such  delivery  is 
not  accomplished  by  leaving  the  writ  in  some  place  to 
which  it  is  expected  that  the  sheriff  or  one  of  his  depu- 
ties will  come,  and,  in  so  doing,  will  receive  it.^  If, 
however,  the  writ  is  delivered  to  an  officer  with  intent 
to  have  it  executed,  and  it  is  levied  upon  property 
which  is  found  to  be  so  encumbered  by  prior  liens  that 
the  levy  must  prove  unproductive,  and  on  that  account 
the  plaintiff  directs  it  to  be  returned  without  any  sale 
thereunder,  the  writ  has  been  issued,  and  the  direction 

1  Burton  v.  Deleplain,  25  Mo.  App.  376. 

2  Gilmore  v.  Davis.  84  111.  487;  Pease  v.  Ritehey,  132  111.  0?,fi;  Kel- 
ley  V.  Vincent,  8  Ohio  St.  41.5;  Berry  v.  Smith,  3  Wash.  G.  G.  60; 
Howes  V.  Cameron,  23  Fed.  Rep.  324. 

8  Walters  v.  Sykes,  22  Wend.  o66. 
*  Burrell  v.  Hollans.  78  Hun.  583. 


27  ISSUING  THE  ORIGINAL  EXECUTION.  §  9b 

to  rotiirn  it  does  not  annul  such  issuing.''  If  a  sup- 
posed writ,  though  pbiced  in  possession  of  the  proper 
oflBcer,  is  absolutely  void,  no  execution  has  issued. 
Hence  a  void  writ  cannot  be  regarded  as  the  abandon- 
ment of  a  prior  valid  writ."  If,  on  the  other  hand,  the 
writ  delivered  to  the  proper  officei-  by  the  plaintiff  as 
and  for  an  execution  is  not  absolutely  void,  execution 
must  be  deemed  to  have  issued,  though  it  is  irregular  in 
form  or  in  the  circumstances  preceding  or  attending  its 
issuing. '^ 

§  9  b.  The  Mode  of  Procuring  an  Original  Writ  of  Exe- 
cution is  by  an  application  to  the  clerk  or  other  oflQcer 
vested  by  law  with  the  authority  and  duty  of  issuing 
it.  If  the  judgment  or  order  is  final  in  the  sense  that 
the  party  in  whose  favor  it  is  is  entitled  to  immediate 
payment,  and  execution  has  not  been  stayed  by  any 
valid  order  or  proceeding,  the  issuing  of  the  writ  is  a 
mere  ministerial  act  which  the  plaintiff  is  entitled  to 
have  performed  on  demand  and  the  payment  of  such 
fees  as  the  statute  prescribes.  No  application  for  the 
writ  need  be  made  to  the  court  or  judge,  nor  need  any 
notice  be  given  to  the  defendant  that  the  plaintiff  will 
apply  therefor.® 

If  the  judgment  does  not  of  itself  give  the  right  to 
the  writ  sought,  but  such  right  is  dependent  upon  the 

B  Godman  v.  Boggs,  12  Neb.  13. 

6  Dunham  v.  Bentley.  103  Iowa,  13(5. 

7. Tones  v.  Goodbar.  GO  Ark.  182;  Grand  Rapids  C.  Co.  v.  Runnels, 
77  Mich.  104;  Hanika's  Estiite,  138  Pa.  St.  330,  21  Am.  St.  Rep.  907; 
Gill  V.  State,  39  W.  Va.  479,  4.5  Am.  St.  Rep.  928;  Drake  v.  Harrison, 
69  Wis.  99,  2  Am.  St.  Rep.  717. 

sDorn  v.  Howe.  59  Cal.  129;  Steele  v.  Thompson,  G2  Ala.  323; 
Coulter  V.  I.nmpkiu.  94  Ga.  225;  Ensley  v.  McCorkle,  74  Ind.  240; 
Ayres  v.  Campbell,  9  Iowa.  213.  74  Am.  Dec.  .310;  Maloney  v.  Real 
Estate  Assn.,  57  Mo.  App.  384;  Gaines  v.  Travis,  Abbotts  Adm.  422. 


§  9b  ISSUING  THE  ORIGINAL  EXECUTION.  28 

happening  of  some  contingency  whicli  cannot  be  ascer- 
tained from  an  inspection  of  the  record,  it  is  proper, 
and  probably  necessary,  to  procure  a  special  order  of 
court.  Thus,  where  a  decree  foreclosing  a  lien  directs 
the  sale  of  specified  property  to  pay  plaintifL's  demand, 
and  he  is  not  entitled  to  a  fieri  facias,  except  for  the 
balance  remaining  unpaid  after  such  sale,  it  has  been 
held  that  he  can  obtain  execution  for  the  deficiency 
only  upon  an  application  to  the  court.^  In  many  of 
the  states,  however,  the  officer  authorized  to  make  the 
sale  is  required  to  file  a  return,  with  a  report  of  his  pro- 
ceedings, showing  the  amount  remaining  unpaid  after 
crediting  the  defendant  with  the  proceeds  of  the  sale, 
and  the  clerk  is  thereupon  authorized  to  docket  a  judg- 
ment for  the  deficiency  shown  by  such  return.  Where 
this  practice  prevails,  execution  may  doubtless  issue 
for  such  deficiency  without  any  notice  to  the  defendant 
and  without  obtaining  any  special  order  authorizing 
iti» 

In  some  of  the  states  statutes  have  been  enacted  re- 
quiring certain  acts  to  be  done  by  the  plaintiff  in  cases 
of  a  peculiar  nature  to  entitle  him  to  execution,  as  thnt 
he  shall  give  some  notice  or  file  some  afifldavit."  We 
shall  not  here  undertake  to  state  these. statutes  in  de- 
tail, nor  even  to  summarize  their  substance.  Where 
they  exist,  a  writ  issued  without  complying  with  them 
is,  of  course,  irregular,  but  it  is  not  void.-*^^ 

9  Wallace  v.  Field,  56  Mich.  3;  Clapp  v.  Maxwell,  13  Neb.  542; 
Wilson  V.  Johnson,  74  Wis.  337. 

'0  Stotts  V.  Brooklield,  55  Ark.  307;  Hawley  v.  Whalen,  64  Hun, 
550;  Freer  v.  Tupper,  21  S.  C.  75. 

".Tones  v.  Croodbar,  CO  Ark.  182;  .Johnson  v.  Ilolloway.  82  111. 
334;  Davis  v.  Bell,  .57  Miss.  320;  Hall  v.  Moore,  70  Miss.  75;  McAnaw 
V.  Matthis.  129  Mo.  142;  Clark  v.  Bond,  7  Baxt.  288;  Shackleford  v. 
Apperson,  0  Gratt.  451. 

".Tones  v.  Goodbnr.  60  Ark.  182;  Miller  v.  O'Bannou,  4  Lea,  308; 
Cowau  V.  Lowry,  7  Lea,  620. 


29  ISSUING  THE  ORIGINAL  EXECUTION.  §  9b 

If  a  judgment  is  conditional  or  optional,  as  where  it  is 
for  a  specified  sum,  but  gives  the  defendant  the  right, 
within  a  time  stated,  to  satisfy  it  by  paying  a  portion 
in  money  and  giving  a  note  with  security  for  the  bal- 
ance, the  failure  to  exercise  the  option  within  the  time 
allowed  entitles  the  plaintiff  to  execution  for  the  satis- 
faction of  the  sum  named  in  the  judgment  without  any 
further  order  of  the  court  or  judge.*'* 

If  the  right  to  execution  is  suspended  by  an  appeal  or 
writ  of  error  and  a  stay  bond  given  thereunder,  and  the 
judgment  is  affirmed  by  the  appellate  cour-t,  the  clerk 
of  the  court  wherein  the  judgment  was  rendered,  on  the 
filing  of  the  remittitur  therein,  is  revested  with  the  au- 
thority to  issue  execution  without  any  further  order  of 
court  or  any  notice  to  the  defendant.**  If  from  any 
cause  there  is  no  right  to  issue  execution  until  some 
further  order  is  obtained  from  the  court,  then,  as  the 
defendant  has  a  right  to  be  heard  against  the  applica- 
tion, he  should  be  given  notice  thereof  before  a  hearing 
is  asked,  and,  at  all  events,  before  any  order  is  made 
directing  the  writ  to  issue.*"'^ 

It  is  said  that  the  clerk  may  require  the  application 
for  execution  to  be  in  writing.  If  he  entertains  any 
reasonable  doubt  upon  the  subject,  he  may  require  evi- 
dence that  the  person  demanding  the  writ  is  entitled  to 
do  so,  especially  where  such  person  professes  to  act  as 
an  assignee  or  agent  of  the  plaintiff,  and  his  right  or 
authority  does  not  appear  from  any  papers  on  file  in 
the  cause;  but,  if  the  clerk  fails  or  neglects  to  issue  the 
writ  without  demanding  any  evidence  of  the  right  of 
the  applicant  thereto,  such  clerk  cannot  subsequently 

13  Coulter  V.  T.uinpkin.  94  Ga.  225. 

i^Wilburn   v.    IIa!l,   17   Mo.   471:   State  v.    Slioldon.   20   Xeh.   15; 
Rrndinc:  v.  Tioadins:.  H  N.  .T.  L.  ISO:  T.ommel  v.  Tauska,  54  Tex.  505. 
16  McAiiliffe  V.  Couglilin.  lOo  Cal.  2i;0, 


§  10  ISSUING  THE  ORIGINAL  EXECUTION.  80 

urge  as  an  excuse  for  his  nonaction  that  such  evidence 
was  not  furnished  to  him.*® 

If,  upon  proper  application,  the  clerk  or  other  officer 
rliar2:ed  with  that  duty  refuses  to  issue  a  writ  of  execu- 
tion, the  remedy  of  the  party  entitled  thereto  may  either 
be  by  a  motion  in  the  court  in  which  the  judgment  is  for 
an  order  directing  such  officer  to  issue  the  writ,  or  by 
an  independent  proceeding  by  mandamus  to  compel 
such  issuing,  or  the  officer  may  be  subjected  to  an  ac- 
tion to  recover  the  damages  suffered  by  his  failure  to 
perform  his  official  duty.*'' 

§  10.  Of  the  Courts  that  may  Issue— General  Rule.— 
Probably  the  verj^  first  question  to  be  answered  in  re- 
gard to  the  proposed  issuing  of  an  execution  is  this: 
Does  the  court  wherein  the  judgment  has  been  entered 
have  authority  to  enforce  its  judgments  by  the  aid  of 
this  writ?  And  here  it  may  be  remarked  that  a  judg- 
ment at  law,  disconnected  from  the  right  to  issue  exe- 
cution, would  be  so  idle  and  worthless  a  record  that  we 
can  scarcely  conceive  that  its  creation  would  be  encour- 
a<red  or  its  existence  tolerated.  A  tribunal  invested 
with  the  power  to  call  litigants  before  it,  and  to  ad- 
judge that  one  of  them  recover  of  the  others  certain 
specific  property  or  a  certain  compensation  in  money, 
and  yet  without  any  authority  to  make  its  decision  ef- 
fective, would  be  the  arena  of  such  solemn  trifling  that 
nothing  but  the  most  positive  declaration  made  by  the 
law  creating  such  court  could  convince  us  of  its  legal 
existence.  It  may  be  assumed,  as  a  general  proposi- 
tion, that  every  judicial  tribunal  having  jurisdiction  to 
pronounce  judgment  has  authority  to  award  execution. 

"  Steele  v.  Thompson.  62  Ala.  323, 
17  See  post,  §  21. 


31  ISSUING  THE  ORIGINAL  EXECUTION.  8  10 

Exceptions  to  this  rule  must  rest  upon  some  clear  and 
positive  statutory  limitation.***  "If  a  court  is  compe- 
tent to  pronounce  judgment,  it  must  be  equally  compe- 
tent to  issue  execution  to  obtain  its  satisfaction.  A 
courtwitliout  tlie  meaiisof  executing  its  judgments  and 
decrees  would  be  an  anomaly  in  jurisprudence,  not  de- 
servJbg  the  name  of  a  judicial  tribunal.  It  would  be  idle 
to  adjudicate  what  could  not  be  executed,and  the  power 
to  pronounce  necessarily  implies  the  power  of  execut- 
ing." **  But  there  were,  nevertheless,  judicial  tribunals 
which  did  not  possess  authority  to  issue  wiits  of  execu- 
tion against  the  properly  of  the  defendant.  The  most 
important  of  these  tribunals  was  the  court  of  chancery. 
This  court  did  not,  however,  undertake  to  pronounce  a 
formal  judgment  directing  that  one  party  should  re- 
cover of  another.  It  did  not  assume  to  deal  with  the 
legal  rights  of  the  parties.  It  undertook  to  decide 
what  was  due  from  one  party  to  the  other,  not  accord- 
ing to  law,  but  according  to  conscience.  It  then  at- 
tempted to  coerce  the  party  adjudged  to  be  in  the 
wrong  into  acting  as  became  a  conscientious  man.  Its 
decrees,  unless  for  land,  operated  solely  in  personam,"^ 
and  were  enforced  solely  by  means  of  process  for  con- 
tempt, under  which  a  disobedient  party  could  be  im- 
prisoned until  he  became  obedient.  If  he  could  not  be 
seized,  or  if,  being  seized  and  imprisoned,  he  still  re- 
fused to  comply  with  the  decree,  the  court  could  issue  a 
writ  of  sequestration  under  which  commissioners 
named  in  the  writ  sequestered  "the  personal  property 
of  the  defendant,  and  the  rents  and  profits  of  his  real 

18  Bailey  v.  ^Yiun,  101  Mo.  G49;  Musser  v.  Hanvood,  23  Mo.  App. 
495. 

19  United  States  v.  Dreniian,  Hemp.  325. 

20  Daniells  Cb.  Pr.,  4th  xVm.  ed..  1031;  Noonan  y.  Lee,  2  Black, 
499;  Orchard  v.  Hughes,  1  Wall.  73. 


§  10  ISSUING  THE  ORIGINAL  EXECUTION.  32 

estate,  and  kept  him  from  the  enjoyment  of  them  till 
he  had  cleared  his  contempt."  The  English  courts  of 
chancery  by  the  statute  1  and  2  Vict.,  c.  110,  sec.  18,. 
are  authorized  to  issue  executions  in  certain  cases.^^ 
In  order  that  a  decree  in  chancery  may,  by  virtue  of  the 
provisions  of  this  statute,  be  enforced  by  execution 
against  the  defendant's  property,  it  must  contain  the 
substantial  elements  of  a  judgment  at  common  law.  It 
must  be  strictly  for  the  payment  of  a  sum  of  money 
from  one  person  to  another.-^  The  rule  thus  intro- 
duced into  the  English  law  is  in  substantial  conform- 
ity with  the  practice  adopted  in  the  different  states,^^ 

21  This  statute  enacts  '"that  all  decrees  and  orders  of  courts  of 
equity,  and  all  rules  of  courts  of  common  law,  and  all  orders  of 
the  lord  chancellor  or  of  the  court  of  review  in  matters  of  bank- 
ruptcy, and  all  orders  of  the  lord  chancellor  in  matters  of  lunacy 
whereby  any  sum  of  money  or  any  costs,  charges,  or  expenses  shall 
be  payable  to  any  person,  shall  have  the  effect  of  judgments  in 
the  superior  courts  of  common  law,  and  the  persons  to  whom  any 
such  moneys  or  costs,  charges,  or  expenses  shall  be  payable,  shall  be 
deemed  judgment  creditors  within  the  meaning  of  this  act;  and  all 
powers  hereby  given  to  the  judges  of  the  superior  courts  of  common 
law,  with  respect  to  matters  depending  in  the  same  courts,  shall 
and  may  be  exercised  by  courts  of  equity  with  respect  to  matters 
therein  depending,  and  by  the  lord  chancellor  in  the  court  of  review 
in  matters  of  bankruptcy,  and  by  the  lord  chancellor  In  matters  of 
lunacy;  and  all  remedies  hereby  given  to  judgment  creditors  are  in 
like  manner  given  to  persons  to  whom  any  moneys  or  costs,  charges, 
or  expenses,  are  by  such  orders  or  rules  respectively  directed  to  be- 
paid.''  Executions  on  decrees  under  this  act  must  issue  out  of  the 
chancery  and  not  out  of  the  common-law  courts.  In  re  Stanford, 
4  Scott  N.  R.  23;  3  IMan.  &  G.  407;  G  Jur.  38. 

22  Garner  v.  Briggs,  4  Jur.,  N.  S.,  230;  6  Week.  Rep.  378;  Earl  of 
Manstield  v.  Ogle,  4  De  Gex  &  J.  38;  Shaw  v.  Neale,  20  Beav.  157, 
174;  1  .Jur.,  N.  S.,  6G6;  G  H.  L.  Gas.  541;  4  Jur.,  N.  S.,  G95;  Chadwick 
V.  Holt,  8  De  Gex  M.  &  G.  584;  2  Jur.,  N.  S.,  918. 

2-*  Battle  V,  Bering,  7  Yerg.  529;  Van  Ness  v.  Cantine,  4  Paige,  5o; 
Bryson  v.  Petty,  1  Bland,  183;  Brockway  v.  Copp.  2  Paige,  578;  Pat- 
rick V.  Warner,  4  Paige,  397;  Hall  v.  Dana,  2  Aiken,  381;  Otis  v. 
Forman,  1  Barb.  Ch.  33;  Wallen  v.  Williams,  7  Cranch,  602;  Colman 
V.  Cooke,  G  Rand.  618;  McNair  v.  Ragand,  2  Dev.  Eq.  42,  22  Am.  Dec. 


33  ISSUING  THE  ORIGINAL  EXECUTION.  §  10 

and  also  by  the  federal  courts.""*  In  some  instances, 
decrees  direct  the  sale  of  certain  property,  and  make 
the  defendant  responsible  for  the  deficiency  remaining 
after  the  proceeds  of  the  sale  have  been  applied  to  the 
payment  of  the  plaintiff's  demand.  In  such  cases  the 
amount  to  be  paid  by  defendant  is  uncertain  and  con- 
tinp;ent;  and  therefore  no  execution  can  issue  as^ainst 
bim  until  the  sale  has  been  completed  and  the  defi- 
ciency ascertained."^ 

The  right  of  courts  of  law  to  issue  executions  may, 
we  think,  be  successfully  upheld  in  all  case's  where  the 
power  is  not  clearly  withheld  by  statute.  The  author- 
ity of  courts  of  chancery  to  issue  writs  of  execution 
similar  in  form  and  effect  to  those  employed  at  law, 
is,  as  we  haye  already  seen,  dependent  upon  statutes  of 
comparatiyely  recent  date;  but  these  courts,  as  we  haye 
shown  in  the  preceding;-  chapter,  haye  for  a  long  period 
issued  writs,  the  ultimate  object  of  which  was  to  com- 
pel obedience  to  their  decrees,  and  all  of  which  were  in 
effect,  as  one  of  them  was  by  name,  a  writ  of  execution. 
There  are  other  courts  which  haye  jurisdiction  to  bring 
litigants  before  them,  and  to  determine  what  is  due 
from  one  to  the  other,  and  which  yet  do  not  i)rofess  to 
enter  a  direct  judgment  that  one  party  shall  recover 

728;  Coombs  v.  .Toidan.  S  Bland,  321.  22  Am.  Dec.  2.30:  Bouslou.cb  v. 
Bousloush.  (>8  Fa.  St.  495;  Gen.  Stats.  Ky.,  ed.  1804,  sec.  1GG3. 

24  r,y  cii^hth  equity  rule  of  the  United  States  courts,  "final  process 
to  execute  a  decree  may,  if  the  decree  be  solely  for  the  payment 
of  money,  he  by  writ  of  execution,  in  the  form  used  by  the  circuit 
courts  in  suits  at  common  law.  in  actions  of  assumpsit."  Desty's 
Fed.  Proc,  270.  An  additional  rule,  numbered  92,  and  made  in 
1804,  provided  for  decree  and  execution  for  balance  due  after  sale 
in  foreclosure  suits.     Desty's  Fed.  Proc,  310. 

25  Bank  of  Rochester  v.  Emerson,  10  Paige,  115;  Cobb  y.  Thorn- 
ton, 8  How.  Pr.  00. 

Vol.  1.— 3 


§  11  ISSUING  THE  ORIGINAL  EXECUTION.  34 

from  the  other.  The  most  common  of  these  are  the  pro- 
bate or  surrogate  courts.  The  decisions  of  these  courts 
are  res  judicata;  they  permanently  establish  the  liabil- 
ity of  the  parties;  but  the  discharge  of  the  liability 
thus  established  cannot  be  compelled  by  execution, 
unless  the  statute  has  so  provided.^® 

The  implied  authority  of  a  court  to  issue  executions 
is  restricted  to  those  based  upon  judgments  rendered 
by  it.  Hence,  if  an  execution  appears  to  have  issued 
from,  or  out  of,  or  by  the  clerk  of  a  court  other  than 
that  wherein  the  judgment  was  rendered,  specific  statu- 
tory authority  for  such  issuing  must  exist  to  impart  to 
the  writ  any  validity.^'^ 

§  11.  Of  the  Laws  Governing  American  Courts.— The 
authority  of  the  several  courts  of  each  state  to  issue 
executions  is  conferred  by  the  several  statutes,  where 
statutory  regulation  has  been  attempted;  and,  in  the 
absence  of  such  regulations,  by  the  rules  of  the  com- 
mon law.  The  federal  judiciary,  on  the  other  hand,  is 
entirely  beyond  the  control  of  state  laws.  The  courts 
of  the  United  States  issue  executions  under  the  author- 
ity and  control  of  the  laws  enacted  by  Congress,  of  the 
rules  adopted  by  the  courts  themselves,  and  of  the  pro- 
visions of  the  common  law  and  chancery  practice,  as 
adopted  or  modified  by  the  United  States  statutes  or 
by  the  rules  of  court.^''  * 

28  Stilos  V.  Eurch,  5  Paige,  135. 

27  Willamette  etc.  Co.  v.  Hcndrix,  28  Or.  485,  52  Am.  St.  Rep. 
800;  Chandler  v.  Caloord,  1  Okla.  266;  Bingham  v.  Burlingame,  .33 
Hun,  211;  Gibbs  v.  Bouiiand,  6  Yerg.  481. 

27a  Wayman  v.  Southard,  10  Wheat.  1 ;  Toland  v.  Spraguc,  12  Pot. 
300;  Boyle  v.  Zacharie,  6  Pet.  648;  Gwin  v.  Breedlove,  2  How.  29; 
The  Steamer  St.  Lawrence,  1  Black,  522;  Robinson  v.  Campbell,  3 
W^heat.  222;  Noonan  v.  Loe,  2  Black,  509;  McFarlnnd  v.  Gwin,  3 
How.  720;  Griffin  v.  Thoini)son,  2  TTow.  244.  For  law  resulnting  ex- 
ecutions from    United    States    courts    in    common-law    cases,   see 


33  ISSUING  THE  ORIGINAL  EXECUTION.  §§  12,  13 

§  12.  Court  Ceasing  to  Exist.— if  the  existence  of  a 
tribunal  competent  to  pronounce  judgment  necessarily 
implies  tbe  existence  in  that  tribunal  of  the  power  to 
award  execution,  it  would  seem  to  follow,  as  the  nega- 
tive of  this  pnjposition,  that  tlie  destruction  of  the  tri- 
bunal would  necessarily  carry  with  it  the  destruction 
of  the  power.  When  a  court  has  ceased  to  exist  by  the 
repeal  of  the  act  by  which  it  was  created,  it  no  longer 
has  any  authority  to  issue  executions.^®  When  a  court 
has  been  abolished,  or  the  business  thereof  transferred 
to  another  court,  the  clerk  of  the  latter  is  thereby  au- 
thorized to  issue  executions  upon  the  judgments  of  the 
court  which  has  thus  been  abolished.^* 

§  13.  Removal  of  Record  to  Another  Court.— Ordi- 
narily, the  court  where  the  judgment  is  entered  must 
issue  execution. •^^*  This  court  may,  however,  continue 
in  existence  with  its  general  power  unimpaired,  and 
yet  its  power  to  issue  execution  may,  in  a  particular 
case,  be  suspended  or  destroyed.  The  most  familiar  il- 
lustration of  this  is  in  the  case  of  an  appeal  to  some 
higher  tribunal.  Here,  although  the  appellate  court 
may  have  affirmed  tlu^  judgment,  the  court  of  original 
jurisdiction  may  have  no  power  to  issue  execution.  Ac- 
<'ording  to  the  common-law  rule,  whenever  upon  the 

Dt'sty's  Fed.  Proc,  sec.  916;  17  U.  S.  Stats.  197;  on  jud.armonts  for 
duties,  Desty's  Fed.  Proc.,  see.  962;  13  U.  S.  Stats.  494;  on  juds- 
nionts  for  the  use  of  the  United  States,  Desty.  sec.  9S6;  1  U.  S.  Stats, 
."(iri;  on  .iudgments  for  fines  in  penal  or  criminal  causes,  Desty,  sec. 
1041;  17  U.  S.  Stats.  108;  in  admiralty,  see  Admiralty  Rule  21; 
Desty,  p.  183v5;  in  equity,  see  Equity  Rules  8  and  92,  Desty,  pp.  1710, 
ISll;  ante,  §  8  a,  note. 

2><  Lee  V.  Newkirk.  18  111.  550;  Newkirk  v.  Chapron,  17  111.  346; 
Harris  v.  Cornell,  SO  111.  .54. 

28  Mavity  v.  Eastridcre,  67  Ind.  215. 

•■50  Com.  Dig.,  tit.  Executions.  I;  Rac.  .\br..  tit.  Executions,  E; 
Ringham  on  Judgments  and  Executions,  181. 


§  13  ISSUING  THE  ORIGINAL  EXECUTION.  36 

prosecution  of  an  appeal  the  original  record  was  re- 
moved into  another  court,  that  court  alone  was  compe- 
tent to  issue  execution.  In  other  words,  unh  ss  snme 
statute  has  interposed  to  modify  or  destroy  the  com- 
mon-law rule,  the  court  having  custody  of  the  original 
record  must  issue  the  executiou.^^  The  only  decisions 
coming  within  our  observation  apparently  in  conflict 
Avith  this  statement  were  made  at  a  very  early  date  in 
the  states  of  New  Jersey  and  Missouri.^^  In  the  first- 
named  state  it  was  said  to  be  the  practice  at  the  time 
the  decision  was  rendered  to  issue  execution  from  the 
appellate  court,  but  that  at  a  later  date  the  plaintiif 
seemed  to  have  been  at  liberty  to  procure  a  writ  from 
either  court.  In  Missouri  the  earlier  decisions  sanc- 
tioned the  issuing  of  the  writ  out  of  the  appellate  court, 
while  the  later  affirmed  that  such  issuing  was  an  irregu- 
larity merely. ^^  In  the  United  States,  the  common-law 
rules  in  regard  to  appeals,  including  the  rules  provid- 
ing for  the  means  of  enforcing  the  judgments  of  appel- 
late courts,  have  been  very  generally  displaced  or  modi- 
tied  by  statutory  provisions.  We  must,  therefore,  refer 
our  readers  to  the  different  state  statutes  for  further  in- 
formation concerning  the  respective  powers  of  courts 
of  original  and  courts  of  appellate  jurisdiction  to  issue 
executions  on  judgments,  after  an  appeal  has  been 
prosecuted  to  final  judgment. 

31  Tifld's?  Prnrtico.  904;  Altinan  v.  Johnson,  2  Midi.  N.  P.  42;  Allen 
V.  Bt'kber,  3  Gilm.  .jOG;  Cowpertlnvaitc  v.  Owens,  3  Term.  Kep.  GHT; 
Herbert  v.  Alcocke,  1  I^v.  134;  Prinfjle  v.  Lansd.Tle,  3  McCord,  481); 
Vicars  v.  Ilaydon,  Cowp.  843;  Com.  Difr..  tit.  Executions,  I,  1;  Rocl<- 
well  V.  District  Court,  17  Colo.  118,  31  Am.  St.  Kep.  20r>;  Hawkins 
V.  Craig.  Sneed  (Ky.).  191;  Willtnrn's  Ad.  v.  Hall,  17  Mo.  471;  Walter 
V.  Tabor,  21  Mo.  7");  Irwin  v.  I'li-jruson,  83  Tex.  491;  Henson  v. 
Byrne.  91  Tex.  025. 

32  Seely  t.  Boon.  1  N.  .T.  L.  101;  McNair  v.  Lane,  2  Mo.  57;  Evans 
V.  Wilder,  .'  Mo.  314. 

83  Block  V.  Moi-rison,  112  Mo.  343. 


37  ISSUING  THE  ORIGINAL  EXECUTION.  §  13 

Sometimes  the  judgment  entered  in  the  appellate 
court  is  not,  strictly  speaking,  a  judgment  either  of  af- 
firmance or  of  reversal,  but  is  the  result  of  a  trial  de 
novo  in  that  court,  and,  though  the  judgment  is  differ- 
ent from  that  jjronounced  by  the  trial  court,  such  diilcr- 
ence  does  not  necessarily  imply  any  error  on  the  part 
of  that  court,  because  the  evidence  upon  which  the  two 
tribunals  acted  may  have  been  substantially  different. 
Where  such  is  the  case,  it  is  obvious  that  the  judgment 
<?ntered  in  the  higher  court,  whether  the  proceeding  has 
been  such  as  to  remove  the  record  thither  or  not,  is  a 
new  judgment,  and  cannot,  whether  in  harmony  with 
the  judgment  of  the  trial  court  or  not,  be  regarded  as  a 
judgment  of  that  court.  In  this  class  of  cases  the  exe- 
<?ution  should  issue  from  the  court  wherein  the  final  or 
last  judgment  is  entered. 

When  the  practice  is  settled  that  upon  the  affirmance 
of  a  judgment  by  the  app(»llate  court  execution  there- 
on should  issue  out  of  the  trial  court  where  the  record 
remains,  there  seems  no  reason  for  giving  any  greater 
effect  to  a  writ  issued  out  of  the  appellate  court  than 
to  any  other  writ  from  a  court  having  no  authority  to 
issue  it;  but  in  Missouri,  where  the  early  decisions  upon 
the  subject  were  inharmonious,  some  of  them  affirming 
the  propriety  of  issuing  the  writ  out  of  the  appellate 
<*ourt,  it  was  held  that  an  execution  sale  wouhl  not  be 
adjudged  void  because  the  writ  issued  out  of  that  court 
instead  of  out  of  the  trial  court.  It  was  said  that  the 
remedy  of  the  defendant  in  the  writ  was  by  motion  to 
quash  it,  and  that,  not  having  resorted  to  this  motion, 
he  could  not  collaterally  avoid  a  sale  founded  upon 
such  writ.'** 

34  Block  V.  Morrison,  112  Mo.  043. 


§  14  ISSUING  THE  ORIGINAL  EXECUTION.  3» 

§  14.  Executions  on  Transcripts  from  other  Courts.— 
It  is  not  unusual  for  statutes  to  be  enacted  authoriz- 
ing the  filing  with  the  county  clerk  of  transcripts  of 
judgments  rendered  and  entered  by  justices  of  the 
peace,  and  i)roviding  that  executions  may  issue  on  such 
transcripts  in  the  same  manner,  and  by  the  same  per- 
son or  officer  as  though  the  judgment  were  rendered  in 
the  court  wherein  the  transcript  is  filed. '^^  This  does 
not  transform  the  original  judgment  into  a  judgment  of 
the  higher  court,  except  for  the  purpose  of  issuing  and 
controlling  execution.*^**  It  seems  to  be  fatal  to  de- 
scribe the  execution  as  issuing  out  of  the  court  in  which 
the  transcript  has  been  docketed,^'^  or  to  direct  the  writ 
to  one  officer  when  it  should  be  directed  to  another.^* 
In  New  York  an  execution  on  such  a  transcript  of 
judgment  may  be  issued  by  the  plaintiff  or  his  attor- 
ney, as  in  other  cases.^^  The  filing  of  the  transcript 
does  not  prolong  the  life  of  the  original  judgment. 
The  time  at  which  the  right  to  execution  will  expire 
must  be  computed  from  the  rendition  of  the  judgment^ 
and  not  from  the  filing  of  the  transcript.'*^  When  the 
county  clerk  issues  execution  to  enforce  the  judgment 
of  a  justice  of  the  peace,  his  authority  to  do  so  rests 
upon  tlie  filing  of  the  transcript,  and  upon  the  exist- 
ence of  such  other  facts  as  the  statute  has  prescribed. 

35  Wooters  v.  Joseph,  137  111.  113,  31  Am.  St.  Rep.  355;  Johnson  v. 
Ratta.  84  Mo.  139;  Bauer  v.  Miller,  16  Mo,  App.  252;  Ginoehio  v. 
Figarl,  2  Abb.  Pr.  185;  4  E.  I).  Smith,  227. 

36  People  V.  Doe,  31'  Cal.  220;  Martin  v.  Mayor  of  New  York,  11 
Abb.  Pr.  295;  20  How.  Pr.  8(5. 

37Merritt  v.  Jiidd,  9  N.  Y.  Supp.  491. 

38  Campbell  v.  Smith,  116  Ala.  290,  67  Am.  St.  Rop.  113, 

39  McDonald  v.  O'Flynn,  2  Daly,  42,  The  ease  of  Brush  v.  I^, 
18  Abb.  Pr.  398,  holding  that  such  an  execution  must  be  issued  by 
the  clerk,  was  reversed  by  the  court  of  appeals.  See  36  N.  Y.  49; 
1  Tr.'ins.  App.  66;  3  Abl).  Pr..  N.  S.,  204;  34  How.  Pr.  283. 

40  Kerns  v.  Graves,  26  Cal.  156. 


39  ISSUING  THE  ORIGINAL  EXECUTION.  §  l-l 

Unless  it  can  be  shown  that  the  law  was  substantially 
complied  with,  the  act  of  the  clerk  is  rejijarded  as  with- 
out aiitli(H'ity,(ind  thcrcfoi'c  as  void.**  It  has  h'  ncc  been 
held  IliaL  if  the  statute  KMiiiii- -s  that  brfurc  a  transcript 
of  the  judgment  shall  be  tiled  or  a  ilocketing  th.  reof 
shall  be  made  in  another  court,  an  execution  shall  have 
issued  out  of  the  trial  court  and  have  been  returned 
nulla  bona,  or  that  the  transcrii)t  shall  be  signed  in  any 
particular  manner,  that  the  omission  to  comply  with 
these  statutory  directions  is  fatal,  and  that  all  proceed- 
ings subsequently  taken  are  void.^  In  some  instances, 
though  a  return  was  made  in  atteni])ted  compliance 
with  the  statute,  the  subsequent  proceedings  have  been 
held  to  depend  upon  the  sufficiency  of  this  return,  and 
have  been  disregarded  wlien  it  was  thought  to  be  sub- 
stantially defective."*^  Perhaps,  however,  when  it  does 
not  appear  whether  or  not  the  statute  has  been  wholly 
complied  with,  the  presumption  may  be  indulged  that 
the  various  officers  have  done  their  duty.*^  We  can- 
not refrain  from  ex]U'essing  our  conviction  that  these 
decisions,  in  elTect  holding  every  provision  of  the  stat- 
utes upon  this  subject  to  be  mandatory,  are  unsound, 
at  least  when  applied  in  any  proceeding  other  than  a 
motion  on  the  part  of  the  defendant  in  execution  to 
quash  the  Avrit;  and  we  believe,  where  he  does  not 
resort  to  his  motion,  but,  on  the  contrary,  permits  the 

41  (':irv  V.  Ynuse.  MO  Mo.  340,  90  Am.  Dec.  470;  Kul)y  v.  Ilauuilml 
etc.  Ity.  Co.,  oU  Mo.  48();  Lindernian  v.  Edson,  25  Mo.  10.">:  Coonci' 
V.  Munday,  3  Mo.  374:  Hiirks  v.  Flournoy,  4  Mo.  IIU;  Wineland  v. 
Coonce,  5  Mo.  29(5,  32  Am.  Dec.  320. 

42  Caini)l)ell  v.  Smitb,  116  Ala.  290,  07  Am.  St.  Rep.  113;  Ilobson 
V.  McCaiuhridge,  130  111.  307.  Carr  v.  louse,  39  Mo.  340,  90  Am. 
Dec.  470;  Wooters  v.  Joseph,  137  111.  113,  31  Am.  St.  Rep.  355;  Bige- 
low  V.  Booth,  39  Mich.  022. 

■»3  Mattliews  v.  Miller,  47  N.  J.  L.  414. 

**  Martin  v.  Prather,  82  Ind.  535;  I'erkius  v.  Quigley,  02  Mo.  498; 
Sachse  v.  Chingiugsmith,  97  Mo.  400. 


?  14  ISSUING  THE  ORIGINAL  EXECUTION.  40 

writ  to  be  executed  ajiaiust  his  property,  and  then 
seeks  to  avoid  the  sale  made  thereunder,  he  should  be 
denied  the  redress  sought.^''  If,  however,  there  is  an 
express  prohibition  of  the  issuinj;'  of  an  execution  un- 
der certain  circumstances,  or  under  the  statute  it  is 
clear  that  the  court  or  officer  had  no  power  to  issue 
the  writ  when  it  was  issued,  then  it  is  absolutely 
void.'*^  A  true  copy  of  the  judgment,  followed  by  a 
certificate  in  the  following  form:  ''I  certify  that  the 
foregoing  contains  an  entry  made  on  my  docket,"  and 
signed  by  the  justice  of  the  peace,  is  a  sufficient  tran- 
script.*'^  Where  the  transcript  is  regular,  and  a  sale 
has  been  made  thereunder,  the  justice  will  not,  in  a  col- 
lateral proceeding,  be  allowed  to  show  that  an  execu- 
tion as  set  out  in  the  transcript  is*  not  a  true  copy  of  the 
original.^* 

There  are  statutes  authorizing  transcripts  of  judg- 
ments to  be  sent  to  other  counties,  sometimes  for  the 
purpose  of  making  such  judgments  liens  in  the  coun- 
ties to  which  the  transcripts  are  sent,  and  sometimes 
to  authorize  the  issue  of  execution  in  such  county. 
Where  the  latter  is  the  object,  the  authority  to  issue 
execution  depends  on  compliance  with  the  i^rovisions 
of  the  statute,  and  if  issued  in  the  absence  of  such 
compliance,  the  execution  is  void."***^  Where  the  for- 
mer object  is  the  only  one  at  which  the  statute  aims, 
the  power  to  issue  execution  is  confined  to  the  proper 

45  .Jordan  v.  Bradshaw,  17  Ark.  100,  Go  Am.  Dec.  419;  Webster  v. 
Daniel,  47  Ark.  131;  Norton  v.  Quimby,  45  Mo.  388;  Beruliart  v. 
Brown,  122  N.  C.  58G,  G5  Am.  St.  Rep.  72."). 

40  Dunham  v.  Reilly,  110  N.  Y.  3GU;  Fischer  v.  Langbein,  103  N. 
Y.  84. 

*^  Franse  v.  Owens,  25  Mo.  329. 

48  Crowley  v.  Wallace,  12  Mo.  143. 

49  Colville  V.  Neal,  2  Swan,  89;  Morgan  v.  Hannah,  11  Humph. 
122;  Eason  v.  Cummins,  11  Humph.  210. 


41  ISSUING  THE  ORIGINAL  EXECUTION.  §  14 

officers  of  the  county  wherein  the  judgment  was  ren- 
dered. An  issuing  by  the  clerk  of  the  county  in  which 
the  transcript  is  filed  is  void."*" 

In  many  instances,  the  court  wherein  judgment  is 
pronounced  is  autlioi-izcd  to  issue  its  execution,  in  cer- 
tain contingencies,  to  other  counties.  Here  the  gen- 
eral power  to  issue  the  writ  is  ccniferred  by  the  judg- 
ment. A  mistake  in  determining  whether  the  proper 
contingency  exists  is  an  error,  which  may  be  correct- 
ed by  some  appropriate  proceeding,  such  as  by  motion 
to  quash  or  recall  the  writ,  but  cannot  render  the  writ 
void.''*^ 

Under  a  statute  authorizing  the  clerk  of  the  circuit 
court  to  issue  execution  upon  certified  transcripts  of 
judgments  of  justices  of  the  peace,  ui)on  receiving  an 
affidavit  on  behalf  of  plaintiff  showing  that  the  judg- 
ment was  unpaid  in  whole  or  in  part,  and  stating  the 
amount  due,  an  execution  was  issued  without  such 
affidavit,  and  being  followed  by  a  sale,  the  (piestion 
was,  whether  such  sale  was  invalid.  In  the  opinion  of 
the  court  the  issuing  of  the  writ  under  the  circum-  ' 
stances  was  a  mere  irregularity;  and,  the  defendant 
having  waived  the  irregularity  by  his  iuMctiou,  the 
sale  was  pronounced  valid. •'^^  Where  by  statute  au- 
thority was  given  to  levy  a  justice's  execution  in  a 
county  other  than  that  in  which  it  issued,  on  procur- 

«"  Soaton  V.  Ilnmiltdii.  10  Iowa.  .'>94:  Fnniinn  v.  Dpwell.  ."."  Inwa, 
170:  Rhattiick  v.  Cox.  97  Iiul.  242;  Bostwick  v.  Benedict.  4  S.  D.  414; 
Willamette  etc.  Co.  v.  Henclrix.  28  Or.  485,  52  Am.  St.  Rep.  800; 
Lnvolady  v.  Burgess.  32  Or.  418. 

01  Earle  v.  Thomas,  14  Tex.  .^S.3;  Sanders  v.  Russell.  2  T.  B.  Mon. 
1.39,  15  Am.  Dec.  148;  Cox  v.  Nelson,  1  T.  B.  :\ron.  94.  15  Am.  Deo. 
SO;  Sydnor  v.  Roberts.  13  Tex.  ,598,  Go  Am.  Dec.  84;  McConnell  v. 
Brown,  5  T.  B.  Mon.  479;  Younc:  v.  Sniitli.  10  B.  Mon.  29G;  Comuiou- 
wealth  V.  O'Ciill.  7  .T.  .T.  Marsh.  149.  23  Am.  Doc.  393. 

62  Mavity  v.  EastriUge,  G7  Ind.  211. 


§  U  ISSUING  THE  ORIGINAL  EXECUTION.  4? 

ing  a  certificate  from  a  justice  of  the  latter  county  that 
he  knew  the  handwriting  of  the  justice  issuing  the 
execution,  a  h'VY  upon  a  writ  issued  without  such  cer- 
tificate  Avas  adjudged  to  be  wholly  void.*'''  When  au- 
thority is  given  to  the  clerk  of  a  circuit  court  to  issue 
execution  to  any  other  county  in  which  the  judgment 
has  been  docketed,  the  docketing  of  the  judgment  in 
such  other  county  has  been  held  by  the  supreme  court 
of  Wisconsin  to  be  a  prerequisite  to  the  issue  of  the 
writ  to  such  county.  It  is  even  said  that  the  fact  of 
such  docketing  must  be  recited  in  the  writ,  on  the 
ground  that  the  writ  must  on  its  face  disclose  the  au- 
thority for  issuing  it,  and  that,  failing  to  state  such 
docketing,  it  discloses- no  authority  whatsoever.^*  On 
the  other  hand,  it  has  been  decided,  with  at  least 
equal  reason,  that  the  only  purpose  of  the  docketing 
of  the  judgment  is  to  create  a  lien,  and  that  the  only 
defect  of  a  sale,  in  the  absence  of  such  docketing,  is 
that  the  title  of  the  purchaser  cannot  relate  to  any 
date  anterior  to  the  levy  or  sale,  and,  though  the  stat- 
ute expressly  requires' the  writ  to  recite  the  docket- 
ing, such  statute  is  in  this  respect  directory  only.^''^ 
By  the  statutes  of  Michigan,  an  execution  may  be  is- 
sued by  a  justice  of  the  peace  at  the  expiration  of 
live  days  from  the  rendition  of  his  judgment;  and  when- 
ever an  execution  may  issue,  an  affidavit  may  be  made, 
and  a  transcript  of  the  judgment  and  proceedings  filed 
in  the  circuit  court.  A  transcript  filed  before  the  ex- 
piration of  the  five  days  is  unauthorized  by  the  stat- 
ute, and  no  valid  execution  can  issue  thereon.^® 

01  Stroot  V.  McClorkin,  77  Ala.  580. 
B4  Kentlzer  v/.  C.  M.  &  St.  P.  Ky.  Co.,  47  Wis.  041. 
B5  Bcinh.'irflt  v.  Brown.  122  N.  C.  580.  07  Am.  St.  Uep.  725. 
06  O'Brien  v.  O'Brien,  42  Mich.  15;  Vroman  v.  Thompson,  42  Mich. 
145. 


43  ISSUING  THE  ORIGINAL  EXECUTION.  §  14 

Though  a  judgment  is,  on  the  filing  of  the  transcript 
thereof  in  a  (•x)urt  other  than  that  of  its  rendition,  made 
a  judgment  of  the  latter  eourt  for  the  purpose  of  issu- 
ing process  thereon,  no  new  judgment  is  tlierebj  cre- 
ated, and  subsequent  proceedings  must  be  regarded  as 
resting  on  the  original  judgment   for  most  purposes. 
Hence,  if  no  execution  can  properl}^  issue  on  tlie  origi- 
nal   judgment  because  it  has  become  dormant,  none 
can  issue  on  the  transcript  thereof  until  after  a  revivor 
in  some  mode  known  to  the  law.*'''     After  the  original 
judgment  is  vacated  in  the  court  in  which  it  was  ren- 
dered, no  further  execution  can  issue  on  it  elscAvhere. 
'Tor  all  purposes,  except  execution,  the  original  judg- 
ment continues  to  be  the  measure  of  the  plaintiff's  de- 
mand against  the  defendant  and  the  evidence  of  what 
has  been  passed  upon  by  the  court.     All  inquiries  into 
its  regularity  and  effect,  and  all  apidications  for  relief 
from  its  operation,  must  be  made  to  the  court  that  pro- 
nounced it.     The  derivative  judgment  is  the  basis  of 
process  in  the  county  in  which  it  is  entered.     The  regu- 
larity and  execution  of  such  process  must  be  deter- 
mined by  the  court  that  issues  it,  but  its  control  ex- 
tends no  further  than  its  own  process."  ^* 

If,  by  statute,  a  court  is  given  authority  to  issue  a 
writ  to  another  county  wherein  the  defendant  may 
have  real  or  personal  estate,  and  the  original  judg- 
ment has  been  transferred  to  a  court  in  some  other  dis- 
trict by  filing  the  record  in  such  court,  which  is  then 
authorized  to  issue  execution  thereon,  and  it  afterward 
becomes  desirable  to  issue  execution  to  a  county  other 
than  that  wherein  tlie  judgment  was  entered  and  that 
to  which  it  has  been  tlius  transferred,  the  execution 

67  Beck  V.  Church,  113  Pa.  St.  200. 

08  Nelsou  V.  Giffoy,  131  Pa.  St.  273,  289. 


%  15  ISSUING  THE  ORIGINAL  EXECUTION.  44 

must  issue  upon  the  original  judgment  in  the  county; 
wherein  was  recovered.^^ 

§  15.  Executions  Issued  out  of  Wrong  Court. — Exe- 
cutions issued  by  one  court  to  enforce  the  judgments 
of  another  court,  when  there  was  no  authority  so  to 
do,  have  been  regarded  as  absolute  nullities.^**  In  New 
York,  an  execution  issued  out  of  the  supreme  court 
on  a  judgment  in  the  coui't  of  common  pleas.  A  sale 
was  made  under  this  writ,  and  thereafter,  to  aid  the 
title  based  on  this  sale,  the  common  pleas  ordered  the 
writ  to  be  amended  so  as  to  make  it  an  execution  of 
the  court  of  common  pleas.  The  writ  and  the  sale 
thereunder  were,  nevertheless,  treated  as  void  when 
brouglit  in  question  in  an  action  of  ejectment  based 
thereon.^*^ 

59  Nelson  v.  Ciffey,  131  Pa.  St.  273,  289. 

.60  Field  V.  Paulding.  3  Abb.  Pr.  139;  1  Hilt.  187;  Shattuck  v.  Cox, 
97  Ind.  242;  Hansen's  etc.  Factory  v.  Teabout,  104  la.  360;  Bingham 
V.  Burlingaiuo,  33  Ilnn.  211;  Chandler  v.  Calcord,  1  Okla.  260;  Wiu- 
sor  V.  Collison,  32  Or.  418;  Williamette  etc.  Co.  v.  Hendrix.  2S 
Or.  485,  52  Am.  St.  Rep.  800;  Gibbs  v.  Bourland,  6  Yerg.  481;  ante, 
see.  10;  Lovelady  v.  Bnrgess,  32  Or.  418. 

«i  Clarke  v.  :Miller,  18  Barb.  270.  The  following  is  from  the  opin- 
ion of  tlie  conrt  in  this  case:  "The  rule  is  a  familiar  one,  that  judg- 
ments must  be  executed  in  those  courts  in  which  they  are  rendered. 
I  do  not  see  upon  what  principle  the  supreme  court  could  assume 
to  execute  tliis  judgment  recovered  in  the  common  pleas.  The  su- 
preme court  possessed  no  power  to  award  a  fieri  facias  upon  that 
judgment,  and  every  execution  that  is  issued  by  the  attorney  is  re- 
garded in  law  as  awarded  by  the  court  out  of  which  it  issues  just 
as  much  as  if  the  award  was  made  upon  the  record.  It  strikes  me 
as  a  strange  proceeding  for  the  supreme  court  to  award  an  execu- 
tion to  the  slicriff,  commanding  him  to  collect  a  judgment  of  the 
oounty  court;  and  I  entertain  no  doiibt  but  such  an  execution  is 
absolutely  void.  But  what  is  more  strange  still,  after  the  sheriff 
has  executed  it,  and  sold  the  lands  of  the  defendant,  and  given  a 
deed  to  the  purchaser,  the  county  court  assume  to  say.  We  will  in- 
terfere with  the  process  of  the  supreme  court,  because  that  court 
has  undertaken  to  execute  our  judgment;  and  so  by  an  order  the 
county  court  change,  I  suppose,  an  execution  of  the  supreme  court. 


45  ISSUING  THE  ORIGINAL  EXPX'UTION.  §  16 

§  16.  On  What  Judgments— Conceding  that  the 
court  has  general  aii(h(»rity  to  issue  executions,  and 
that  notliing  has  occurred  to  susjjend  such  authority, 
it  is  now  necessary  to  inquire  whether  tlie  judgment 
is  one  in  reference  to  which  this  power  of  the  court  can 
properly  be  invoked;  or  in  other  words,  on  what  judg- 
ments may  executions  issue?  The  general  answer  to 
this  question  is,  that  the  judgment,  though  it  need  not 
contain  a  formal  award  of  execution,^-  must  be  final,*^ 
and  must  in  form  be  sufhcient  to  enable  a  court  by  in- 
spection to  determine  what  has  been  awarded,  from 
whom  the  award  is  to  be  recovered,  and  to  whom  it 
is  due.**^     If  the  judgment  or  decree  is  final  in  form, 

which  Ikis  boon  fully  oxecutod  and  rotninod.  into  a  process  of  the 
county  court,  and  declare  in  effect  that  the  child  is  theirs,  although 
they  had  no  hand  in  begottinq:  it.  The  rule  is  a  familiar  one  that 
every  court  can  amend  its  own  process.  It  is  said  to  be  a  power  in- 
cidental to  every  court.  It  is  no  more  than  assuming  the  power  to 
correct  its  own  proceedings;  but  I  am  not  aware  of  any  power  in 
the  county  court  to  amend  the  process  of  the  supreme  court.  This 
process,  being  void,  is  not  amendable.  In  Simon  v.  Gurney,  1  Peters- 
dorf s  Abr.  505,  where  a  fieri  facias  was  issued  upon  a  judgment 
in  the  common  pleas,  returnable  in  the  king's  bench,  but  the  writ 
was  tested  in  the  name  of  the  chief  justice  of  the  common  pleas, 
the  court  allowed  the  writ  to  be  amended  by  making  it  returnable 
in  the  common  pleas;  placing  their  decision  upon  the  expresvS 
grounds  that  as  the  writ  was  tested  in  the  name  of  the  chief  jus- 
tice of  the  common  pleas,  there  was  something  to  amend  by.  The 
reason  why  void  prooess  cannot  be  amended  is,  there  is  nothing  to 
amend  by."     But  see  Matthews  v.  Thompson,  3  Ohio,  2TJ. 

62  Little  V.  Cook,  1  Alk.  3^3,  15  Am.  Dec.  G9S. 

63  Truett  V.  Legg,  32  Md.  150;  4  Waifs  Prac.  2, 

6-»  As  to  form  of  judgments,  see  Freeman  on  Judgments,  sec.  4G- 
55.  If  the  judgment  is  final  and  is  sufficient  in  form,  an  execution 
may  issue,  IiTespective  of  the  character  of  the  judgment.  Thomp- 
son V.  Perryman.  45  Ala.  019;  Orrok  v.  Orrok,  1  Mass.  341;  French 
V.  Fi'ench,  4  Mass.  587;  Howard  v.  Howard,  15  Mass.  19(5;  Rey- 
nolds V.  Lowry,  G  Pa.  St.  4(;5;  Bank  of  Chester  v.  Ralston.  7  Pa. 
St.  482.  No  execution  can  issue  on  a  judgment  condemning  lands 
and  awarding  a  sum  to  be  paid  therefor.  The  plaintiflf  may  not 
wish  to  take  the  land  at  the  price  awarded.    If  he  does  not  so  wish. 


§  16  ISSUING  THE  ORIGINAL  EXECUTION.  46 

the  right  to  issue  execution  thereon  is  not  suspended 
by  the  filing,  either  in  the  same  action  or  in  another 
suit,  of  some  proceeding  questioning  the  judgment  or 
the  right  to  issue  execution  thereon.^^  If,  after  a  de- 
cree is  entered,  it  is  amended,  execution  may  be  issued 
upon  the  decree  as  thus  amended  without  first  obtain- 
ing an  order  of  court  authorizing  such  issuing.^®  Be- 
cause it  does  not  sufficiently  indicate  for  whom  the  re- 
covery is  to  be  made,  no  execution  can  issue  on  a  judg- 
ment in  favor  of  "the  legatees  of  P.  J.,"  ^'  nor  in  favor 
of  "the  officers  of  the  circuit  court  of  M."  ^  But  this 
rule  does  not  api)ly  to  a  judgment  in  favor  of  C,  "for 
the  use  of  the  officers  of  the  court",  for  here  the  plain- 
tiff is  distinctly  specified,  and  the  other  words  may 
be  rejected  as  surplusage.^**  The  judgment  must  also 
warrant  the  kind  of  execution  issued.     Hence  no  exe- 

ilicre  is  notbinj?  compulsory  in  the  nature  of  the  jurlgmeut.  Chi- 
cago &  M.  II.  K.  Co.  V.  Bull,  20  111.  218;  Cook  v.  Commissioners, 
r>l  111.  11.5.  In  saying  that,  as  a  general  rule,  an  execution  may 
issue  on  any  final  judgment,  we  must  be  understood  as  assuming 
that  the  .ludgmont  is  not  void.  A  void  judgnuMit  is  in  legal  con- 
templation no  judgment,  Freeman  on  .Tudgments,  sec.  117.  An  exe- 
cutiou  issued  on  a  void  judgment  and  an  execution  issued  without 
any  judgment  are  alil<e  invalid,  for  neither  has  any  legal  founda- 
tion on  whicli  to  rest.  Albee  v.  Ward,  8  Mass.  79;  Nabours  v.  Cocke. 
24  Miss.  44;  Fithian  v.  Monks,  43  Mo.  502;  Gelston  v.  Thompson. 
29  Md.  .595;  Mulvey  v.  Cai-penter,  8  Cliic.  L.  N.  171;  Rolierts  v. 
Stowers,  7  Kush,  295;  Morris  v.  Hogle,  37  111.  150;  Johnson  v.  Baker, 
38  111.  98;  Chase  v.  Dana,  44  111.  262. 

65  Aspen  M.  &  S.  Co.  v.  Wood.  Si  Fed.  Rep.  48. 

66  Reynolds  v.  Reynolds,  115  Mich.  378. 

67  Joseph  V.  Joseph,   5  Ala.  280. 

68  Patterson  v.  The  Officers,  11  Ala.  742. 

69  McElhaney  v.  Flynn,  23  Ala.  820.  If  the  amount  of  the  judg- 
ment is  not  certain  when  entered,  as  if  judgment  be  for  the  pen- 
alty in  a  bond  to  be  released  on  payment  of  a  smaller  sum,  exe- 
cution can  only  be  for  such  smaller  sum  (Sprague  v.  Seymour,  15 
Johns.  474),  and  canwot  issue  till  the  judgment  has  been  made  cer- 
tain by  ascertaining  that  sum.  Fitzhugh  v.  Blake,  2  Cranch.  C.  C. 
37;  Rusk  v.  Sackett,  28  Wis.  400. 


47  ISSUING  THE  ORIGINAL  EXECUTION.  §  IG 

<ution  in  personam  can  issue  on  a  judgment  in  rem.''® 
But  if  the  judgment  be  in  personam,  and  also  author- 
ize the  sale  of  certain  i)roperty  for  its  satisfaction,  the 
plaintiff  is  not  compelled  to  avail  himself  of  this  prop- 
erty, but  may  Inke  out  an  ordinary  execution,  and  levy 
upon  other  property  belonging  to  the  defendant.''^ 
In  the  United  States  it  frequently  happens  that  a  judg- 
ment, while  in  form  in  personam,  is  in  fact  enforce- 
able only  against  certain  property,  as  where  the  de- 
fendant is  not  within  the  jurisdiction  of  the  court  and 
has  not  submitted  himself  thereto,  but  his  property  has 
been  attached  and  judgment  entered  against  him  based 
upon  service  of  process,  either  actual  or  constructive, 
not  made  within  the  state.  In  such  cases  it  is  evident 
that  an  execution  commanding  the  seizure  of  property 
other  than  that  already-  within  the  jurisdiction  of  the 
court  ought  not  to  issue,  and,  if  issued,  cannot  sustain 
proceedings  dependent  upon  it.'^^ 

The  issue  of  an  execution  upon  a  judgment  imposing 
a  fine  has  always  been  an  unusual  proceeding,  and  for 
this  reason  has  sometimes  been  thought  to  be  unau- 
thorized. As  late  as  the  year  1S19,  when  a  motion  was 
made,  with  respect  to  certain  defendants  already  in 
prison,  that  a  writ  of  levari  facias  issue  against  their 
goods  "in  order  to  levy  the  fine  which  they  had  been 
adjudged  to  pay,"  the  judges  were  at  first  of  opinion 
that,  unless  the  judgment  purported  to  authorize  tho 
issuing  of  the  execution,  the  process  asked  for  could 
not  be  issued,  but  the  court  said  that,  if  the  process 
might  lawfully  be  issued,  "the   law  was  open  to  the 

TO  Chapman  v.  Lemon.  11  IIow.  Pr.  239. 

Ti  Bennett  v.  Morehouse,  42  N.  Y.  191. 

T2  Kelloy  v.  Kelley.  IGl  Mass.  Ill,  42  Am.  St.  Rep-  3S9;  Giie  v. 
.Tones,  25  Neb.  634;  Kenier  v.  Ilurlbut,  81  Wis.  24,  20  Am.  St.  Uep. 
SoO. 


§  16  ISSUING  THE  ORIGINAL  EXECUTION.  48- 

party  at  whose  instance  the  application  was  made." 
Counsel,  therefore,  searched  the  precedents  and  found 
several  of  an  earh-  date  which  they  claimed  authorized 
the  issuinn;  of  the  writ,  among  which  was  King  v. 
Wade,  Skinner's  Rep.  12,  2  Show.  173,  Sir  Thos.  Jones, 
185,  decided  in  thirty-third  year  of  the  reign  of  Charles 
II.  Counsel,  having,  therefore,  procured  the  issuing 
of  a  writ  of  levari  facias,  a  motion  was  made  to  vacate 
it  on  the  ground  that  it  had  issued  without  any  suffi- 
cient authority  of  law.  The  motion  to  vacate  the  writ 
was  finally  denied  on  the  ground  that,  by  the  fine,  a 
debt  in  favor  of  the  Crown  was  established,  and  that 
it  was  entitled  to  the  same  remedy  as  a  subject  for 
compelling  the  payment  of  the  debt  due  to  it.'^^  The 
rule  thus  established  in  England  also  maintains  in  the 
United  States."^* 

Whether  in  the  event  of  two  or  more  judgments  be- 
ing entered  in  favor  of  the  same  plaintiff  and  against 
the  same  defendant  a  single  execution  may  be  issued 
upon  both  is  a  question  which  has  been  but  little  con- 
sidered. In  Illinois,  when  a  single  execution  issued 
upon  two  claims  against  an  estate,  the  court  said:  "The 
execution  must  follow  the  judgment;  and  to  include 
two  several  and  distinct  claims  as  two  several  judg- 
ments in  one  execution  as  one  judgment  for  amount  of 
both  claims  renders  the  execution  fatally  defective  for 
variance  from  the  judgment."  ^^  It  will  be  observed 
that  this  language  is  addressed  to  the  supposed  vari- 
ance rather  than  to  the  question,  whether  the  two 
judgments  might  not  have  been  enforced  in  a  single 
execution  had  they  been  appropriately  described  there- 

73  Kin-  V.   W^oolf.   1   Chit.  401.  4?u. 

74  Kiiuo  V.  IVople.  8  Wend.  2()4:  Oil]  y.  Stnto.  HO  W.  Va.  479,  45- 
Am.  St.  Rep.  !t2S:  Statp  v.  Burkohnldor.  30  W.  Va.  503. 

75  Cohen  v.  Monard.  31   111.  App.  503. 


49  ISSUING  THE  ORIGINAL  EXECUTION.  §  17 

in.  In  Louisiana,  on  the  other  hand,  it  has  been  held 
that  two  decrees  foreclosing  mortgages  upon  the  same 
property  may  be  enforced  by  a  single  execution.'^^ 
Notwithstanding  this  decision,  we  should  regard  the 
course  pursued  as  irregular,  and  any  future  attempt 
to  enforce  two  or  more  judgments  by  a  single  writ  as 
likely  to  result  in  disaster. 

§  17.  Executions  on  Orders  and  Rules  of  Court.— 
While  at  common  law  it  is  a  well-settled  rule  "that  in 
all  cases  a  judgment  shall  precede  execution,"  '^''  yet 
this  rule  is  now  subject  to  many  statutory  innovations. 
In  England,  as  we  have  seen,  ''^^  the  same  statute  which 
enabled  courts  of  chancery  to  issue  execution  on  final 
decrees  authorized  rules  of  courts  of  law  and  orders 
in  chancery  to  be  enforced  by  execution.  Under  this 
statute  these  orders  and  rules  are  given  the  effect  of 
judgments.  Executions  may  therefore  be  issued  there- 
on without  first  applying  to  the  court  for  permission.'^* 
In  one  respect,  these  rules  and  orders  are  more  favored 
than  final  judgments  and  decrees;  for  when  more  than 
a  year  and  a  day  have  elapsed  since  their  entry,  no 
scire  facias  nor  special  leave  is  necessary  to  authorize 
the  issuing  of  execution.^  But  the  order  or  rule  on 
which  the  execution  is  based  must  be  unconditional,®* 
and  made   after  notice  to  the   party  to  be  charged.®^ 

76  Tnixillo  V.  Delaune,  47  La.  Ann.  10. 

f7  Wasliington  v.  Ewing,  Mart.  &  Y.  47. 

78  Soe  §  10. 

7»Wallis  V.  Sheffield.  T  Powl.  P.  C.  79.'^:  3  .Tur.  1002.  Excli.;  Har- 
rison V.  ITampson,  5  Dowi.  &  L.  4S4;  4  Com.  B.  745;  17  L.  J.  Com. 
P.  147. 

80  In  re  Spooner,  11  Q.  B.  l.']G:  17  L.  .L,  N.  S..   Q.  B.  GS. 

81  Gibbs  V.  Flight,  13  Com.  B.  803;  17  Jur.  1034;  22  L.  J.  Com.  P. 
1056. 

82Rickar(ls  v.  Pattei-son,  S  Mccs.  &  W.  313;  10  L.  J.  Ex.  272;  5 
Jur.  894. 

Vol.  1.— 4 


§  17  ISSUING  THE  ORIGINAL  EXECUTION.  50 

So  in  the  United  States,  under  statutes  similar  to  the 
English  statute  just  referred  to,  executions  may  be  is- 
sued upon  unconditional  orders  of  court  for  the  pay- 
ment of  money.**^  By  this  means  the  purchaser  under 
a  decree  in  chancery  is  sometimes  brought  before  the 
court  by  motion  in  the  original  suit,  and  compelled  to 
pay  his  bid.*** 

Where  moneys  are  directed  to  be  paid  into  court,  it 
is  said  that  no  execution  can  issue  therefor,  and  that, 
in  order  to  obtain  such  writ,  tlie  party  must  "have  the 
order  so  drawn  as  to  make  the  money  payable  directly 
to  himself."  ®^  Where,  in  a  proceeding  in  a  probate 
court  to  settle  accounts  of  a  guardian,  an  order  was 
entered  finding  the  sum  due  from  him  and  requiring 
him  to  pay  it  to  his  successor  in  oflQce,  an  execution 
thereon  was  enjoined  on  the  ground  that  the  finding 
of  the  probate  court  was  not  a  judgment  against  the 
guardian,  and  that  the  only  mode  of  enforcing  such 
order  was  that  pointed  out  by  the  statutes  of  the  state 
— namely,  by  committing  him  to  jail  until  such  order 
had  been  complied  with.®* 

In  some  of  the  states,  when  an  action  has  been 
finally  determined,  and  fees  due  to  the  court  officials 
or  some  of  them  remain  unpaid,  the  clerk  of  the  court 
has  power  to  issue  execution  for  the  collection  of  such 
unpaid  fees.  In  such  cases  the  order  of  the  court  tax- 
ing the  costs,  or  the  mere  cost  bill  properly  verified  or 
authenticated,  where  such  order  is  not  required,  stands 

83  Cal.  Code  Civ.  Proc,  sec.  1007;  Sandels  &  Hill  Ark.  Dig.,  ed.  of 
1894,  sec.  3024,  Code  of  Iowa,  1897,  sec.  39.54;  Sperling  v.  Calfee,  7 
Mont.  514;  Brown  v.  Duncan,  1.32  111.  413,  22  Am.  St.  Rep.  545. 

84  Atkinson  v.  Richardson,  18  AVls.  24G;  Blaokmore  v.  Barker,  2 
Swan,  342. 

85  United  States*  T.  Co.  v.  Stevens,  67  Md.  15G;  Re  Leeds  Bank- 
ing Co.,  L.  R.  1  Ch.  Ap.  l.m 

8fi  Kingsbury  v.  Ilutton,   140  111.  603. 


51  ISSUING  THE  ORIGINAL  EXECUilON.  §§  IS,   19 

in  the  place  of  the  judgment,  at  least  so  far  as  to  war- 
rant and  support  such  execution.**'^ 

§  18.  Executions  on  a  Lost  or  Destroyed  Record.— A 
judgment  is  the  sentence  of  the  law  pronounced  by 
the  court.  The  judgment  necessarily  precedes  its  en- 
try. The  enti*y  or  record  is  not  the  judgment,  but 
merely  the  best  evidence  of  the  fact  that  the  judgment 
exists.  As  a  judgment  may  exist  preceding  the  record 
evidence  of  its  existence  so  it  may  continue  in  full  force 
after  this  evidence  has  been  lost  or  destroyed.  Hence 
the  destruction  or  mutilation  of  the  record  by  no  means 
divests  the  court  nor  tlie  proper  officers  thereof  of  au- 
thority to  issue  execution.**®  From  this  ])roposition 
the  courts  of  Texas  apparently  dissent.  They  main- 
tain that  after  the  record  of  a  judgment  has  bc^en  lost 
or  destroyed,  no  execution  can  issue  thereon  until  such 
record  has  been  replaced  in  some  mode  authorized  by 
law.*® 

§  19.  Execution  on  a  Merged  or  Satisfied  Judgment.— 
When  a  judgment  or  decree  has,  by  payment  or  other- 
wise, lost  its  original  force,  the  case  presented  is  very 

87  Clerk's  Office  v.  Allen.  7  Jones,  156:  Sheppard  v.  Bland,  87  N. 
C.  163.  In  California  an  execution  may  issue  for  costs  on  appeal 
without  any  order  or  judgment  fixing  their  amount.  Section  1034 
of  the  Code  of  Civil  Procedure  is  as  follows:  "Whenever  costs  are 
awarded  to  a  party  by  an  appellate  court,  if  he  claims  such  costs, 
he  must  within  thirty  days  after  the  remittitur  is  filed  with  the 
clerk  below  deliver  to  such  clerk  a  memorandum  of  his  costs,  veri- 
fied as  prescribed  by  the  preceding  section,  and  thereupon  be  may 
have  an  execution  therefor  as  upon  a  judgment." 

88  strain  v.  Murphy,  -ft)  Mo.  340:  Faust  v.  Echols,  4  Cold.  400: 
Fleece  v.  Go<)drum,  1  Duvall,  306:  Cheesewright  v.  Franks,  7  Dowl. 
471;  Fischer  v.  Sievers,  6  Chic.  L.  N.  11;  Childress  v.  Marks.  2  Baxt. 

12. 
»>9  Cyrus  V.  Hicks,  20  Tex.  483;  Beckham  v.  Medlock  (.Tex.  App.), 

46  S.  W.  402. 


§  19  ISSUING  THE  ORIGINAL  EXECUTION.  52 

difiFerent  from  that  where  the  mere  evidence  has  been 
lost.  "When  satisfied,  the  judgment  has  fully  accom- 
plished its  mission,  and  the  preponderance  of  author- 
ity is  in  favor  of  disregarding  as  absolutely  void  all 
proceedings  taken  subsequently  to  the  satisfaction. 
The  satisfaction  of  a  judgment,  as  a  matter  of  course, 
must  terminate  the  period  when  execution  can  prop- 
erly issue;  it  must  equally  follow,  as  a  matter  of  course, 
that  the  subsequent  issue  of  execution  can,  as  to  the 
plaintiff  and  all  persons  acting  in  concert  with  him 
and  having  notice  of  the  satisfaction,  afford  no  justi- 
fication for  issuing  the  writ,  nor  for  any  act  done  un- 
der its  authority.^**  Whoever  sues  out  an  execution 
on  a  judgment  which  he  knows  to  be  paid  is  liable  for 
all  damages  which  he  may  occasion  the  defendant 
thereby;  nor  is  it  essential  to  the  maintenance  of  the 
action  that  the  wrongful  issue  of  the  execution  be 
shown  to  have  been  the  result  of  actual  malice.^-*^  In 
England  it  must  be  shown  that  the  writ  issued  with- 
out probable  cause.'^^  A  plaintiff  is  also  liable  to  de- 
fendant if  he  persist  in  acting  under  an  execution  after 
tender  of  satisfaction  has  been  made  to  and  refused 
by  the  sheriff.^* 

As  the  statutes  of  the  several  states  generally,  and 
we  believe  universally,  provide  for  the  entry  of  satis- 
faction on  the  record  or  upon  the  judgment  docket, 
and  thus  afford  defendants  ample  means  of  giving  pub- 
lic notice   that  an  apparent  obligation,  evidenced  by 

80  McGiiinty  v.  Tlerrick.  5  Wend.  240;  Weston  v.  Clark,  37  Mo. 
573;  Myers  v.  Cochran,  29  Ind.  2r)<j;  Ruckman  v.  Cowell,  1  N.  Y. 
505;  Keolins  v.  Heard,  3  Head,  592;  Iloffin.in  v.  Strohecker,  7 
Watts  80,  32  Am.  Dec.  740. 

01  Brown  v.  Foetor.  7  Wend.  301;  Glover  v.  Horton,  7  Blackf.  295. 

»2  Roret  V.  Lewis.  5  Dowl.  &  L.  371. 

9s  Tiffany  v.  St.  John,  5  Lans.  153;  Masson  v.  Sudam,  2  Jolins.  Ch. 
172. 


153  ISSUING  TilK  OlilCINAL  EXECUTION.  i  19 

the  public  records,  lias  been  canceled,  we  have  before 
■expressed,  **  and  must  still  express,  our  dissatisfac- 
tion with  the  rule  of  law  which  permits  an  execution 
issued  ui>(»n  a  jiidmnciit  apparently  in  force  to  be  treat- 
od  as  void.  Xevertlieless,  so  large  a  number  of  cases 
may  be  cited  to  show  that  even  an  Innocent  purchaser 
at  an  execution  sale  must  lose  his  title  by  parol  proof 
of  the  prior  satisfaction  of  the  judgment  that  we  must 
look  to  the  legislature  rather  than  to  the  judiciary  for 
means  of  escape  from  the  hardship  of  this  rule.'*^  The 
reasoning  by  which  this  rule  of  law  has  been  best  de- 
fended was  thus  stated  in  the  New  York  court  of  ap- 
peals: "The  judgment  was  the  sole  foundation  of  the 
sheriff's  power  to  sell  and  convey  the  premises;  and  if 
the  judgment  was  paid  when  he  undertook  to  sell  and 

94  Frooman  on  .Tudginents,  §  4S0. 

»5  Durette  v.  Brisigs,  47  Mo.  3G1;  Wood  v.  Colvin.  2  Hill  5G7,  3S 
Am.  Dee.  598;  King  v.  Goodwin,  16  Mass.  G3;  Shelly  v.  Lash.  14 
Minn.  408;  Swan  v.  Saddlcmire,  8  Wend.  070;  Lewis  v.  Palmer,  6 
Wend.  3G8;  State  v.  Salyers,  19  Ind.  430;  Neilson  v.  Xeilson,  5  Barb. 
509;  Carpenter  v.  Stillwell,  11  N.  Y.  61;  Laval  v.  Rowley,  17  Ind. 
36;  Hunter  v.  Stevenson.  1  Hill  (S.  CI  41.5;  Knight  v.  Applegate,  3 
T.  B.  Mon.  335;  Murrell  v.  Roberts,  11  Ired.  424,  53  Am.  Dee.  419; 
McClure  v.  Logan,  59  Mo.  234;  Carnes  v.  Piatt,  59  N.  Y.  411;  Frost 
V.  Yonkers  Savings  Bank,  70  N.  Y.  500,  20  Am.  Rep.  027:  Wells  v. 
Chan<ller.  2  Fed.  Rep.  273;  Bullard  v.  McArdle,  90  Cal.  3-55.  35  Am. 
St.  Rep.  170;  Benton  v.  Hatch,  122  N.  Y.  322;  Terry  v,  O'Neil,  71 
Tex.  592;  Soukup  v.  Union  L  Co.,  84  la.  448,  35  Am.  St.  Rep.  317; 
Drefahl  v.  Tuttle,  42  Iowa,  177.  This  last  case  shows  that  at  least 
between  the  parties  to  the  writ  no  estoppel  can  arise  to  preclude 
the  defendant  from  successfully  resisting  an  action  to  recover  the 
property  sold  under  the  writ,  from  the  fact  that  he  was  aware  of 
its  issuance,  made  no  effort  to  have  it  vacated,  and  even  procured 
one  postponement  of  the  sale  with  the  intent  of  obtaining  funds 
with  which  to  satisfy  the  writ.  In  this  case  botli  parties  were  fully 
•cognizant  of  the  facts,  though  each  was  probably  mistaken  with 
respect  to  the  law.  The  judgment  had  been  paid  by  one  of  several 
defendants  who  was  a  surety  of  the  others;  and  they  all  believed 
that  the  judgment  might  be  kept  in  force  for  the  purpose  of  eu- 
iibliug  him  to  compel  repayment  from  his  codefendants. 


§  19  ISSUING  THE  ORIGINAL  EXECUTION.  64 

convey,  his  power  was  at  an  end,  and  all  his  acts  were 
without  authority  and  void.  The  purchaser  under  a 
power  is  chargeable  with  notice,  if  the  power  does  not 
exist,  and  purchases  at  his  peril."  ^  The  supreme 
court  of  Missouri  more  recently,  with  less  logic  but 
equal  emphasis,  announced  as  its  conclusion  on  this 
subject  that  "when  an  execution  has  performed  its 
office  by  extracting  full  satisfaction  from  a  portion  of 
the  debtor's  property,  it  cannot  have  sufficient  life  and 
vigor  to  deprive  him  of  the  residue,  and  transfer  the 
title  from  him  to  another."  ^'  On  the  other  hand,  it 
is  insisted  that  an  execution  regular  on  its  face,  based 
upon  a  judgment  equally  regular  and  apparently  in 
full  force,  must  be  regarded  as  a  regular  execution; 
that  while  a  regular  execution  may  be  voidable,  it  can- 
not be  void;  that  it  must  operate  as  a  sufficient  justi- 
fication to  officers  intrusted  with  its  execution;^®  and 
finally,  that  it  cannot  be  the  means  of  ensnaring  inno- 
cent purchasers  when  nothing  exists  to  warn  them  that 
the  foundation  on  which  it  apparently  rests  has  in  fact 
been  swept  away.^^  But  the  authorities  sustaining 
this  view  concede  that  when  the  purchaser  has  notice, 
the  execution  and  sale  are  void. 

It  is  not  material  whether  the  satisfaction  of  a  judg- 
ment is  actual  or  constructive  or  whether  by  some 
means  other  than  satisfaction  it  has   lost  its  original 

86  Craft  V,  Merrill,  14  N.  Y.  450. 

87  Durette  v.  Briggs,  47  Mo.  3G1. 

88  Mason  v.  Tance,  1  Sneed,  178,  60  Am.  Deo.  144;  L(  wis  v.  Pal- 
mer, 6  Wend.  .307;  Barr  v.  Combs,  29  Or.  399. 

99  Luddiiigton  v.  Peck,  2  Conn.  700;  Boren  v.  McOehee,  6  Port. 
432? 31  Am.  Dec.  095;  .Tackson  v.  Caldwell,  1  Cow.  022;  Van  Campen 
V.  Snyder,  3  How.  (Miss.)  66,  32  Am.  Dec.  311;  Hoffman  v.  Stro- 
liecker.  7  Watts.  80,  32  Am.  Dec.  740;  Doe  v.  Ingersoll.  11  Smedes 
&  M.  249,  49  Am.  Dec.  .o7;  Morton  v.  Academies.  8  Smedes  &  M. 
773;  Banks  v.  Evans,  10  Smedes  &  M.  .'Jo,  48  Am.  Dec.  734. 


55  ISSUING  THE  ORIGINAL  EXECUTION.  §  I'J 

force.  Thus,  though  the  commitment  of  a  debtor  in 
execution  is  not  an  absolute  satisfaction  of  the  judg- 
ment, it  is  deemed  a  conditional  satisfaction,  to  be  de- 
feated only  by  subseciuent  events.  While  in  prison, 
other  measures  cannot  be  taken  against  him  to  obtain 
satisfaction  unless  specially  authorized  by  statute.  If 
a  writ  of  fieri  facias  is  issued  and  his  property  levied 
upon  and  sold,  the  writ  and  all  proceedings  thereunder 
must  be  adjudged  void.*^  A  like  result  must  follow 
proceedings  taken  under  an  execution  issued  after 
a  judgment  has  been  vacated  either  by  an  order  of 
the  court  or  by  the  filing  of  an  undertaking,  which  is 
in  law  sufficient  to  stay  the  execution  and  to  transfer 
the  record  to  an  appellate  court.^*** 

A  defendant  in  an  execution  issued  after  the  pay- 
ment of  the  judgment  and  before  any  satisfaction 
thereof  is  entered  of  record  ma}',  it  seems,  either  elect 
to  treat  any  sale  of  his  property  made  thereunder  as 
void,  and  recover  the  property  sold,  or  may  waive  the 
invalidity  of  the  sale,  and  maintain  an  action  against 

the  plaintill  in  the  execution  for  the  value  of  such  prop- 
erty.103 

AMien  a  judgment  has  been  sued  upon,  and  the  suit 
has  resulted  in  a  second  judgment  against  the  defend- 
ant based  upon  the  first,  it  is  impossible  to  state,  un- 
der the  present  condition  of  the  authorities,  whether 
the  first  is  merged  into  and  extinguished  by  the  sec- 
ond, or  whether  both  must  be  regarded  as  in  force  until 
one  is  satisfied  by  payment.  We  see  no  reason  why 
the  second  judgment  should  not  be  regarded  as  a  full 

100  Kennedy  v.  Duncklee,  1  Gray,  Co;  Kellogg  v.  Undenvood,  163 
Mass.  214. 

101  Billiard  v.  McAidle.  98  Cal.  355,  35  Am.  Sr.  Kep.  176. 

102  rope  V.  Benster,  42  Neb.  304,  47  Am.  St.  Rep.  703. 


§  19  ISSUING  THE  ORIGINAL  EXECUTION  58 

merger  and  satisfaction  of  the  first,  and  to  this  view 
we  think  the  authorities  slightly  preponderate.^^^  But 
upon  the  common-law  theory  that  no  merger  can  take 
phice  except  where  the  original  debt  is  replaced  by  a 
debt  of  a  higher  nature,  it  has  frequently  been  denied 
that  one  judgment  can  merge  into  another. ^^*  This 
last  view  has  for  a  long  period  and  on  many  occasions 
received  the  approval  of  the  courts  of  the  state  of  New 
York.  In  that  state  it  is  certain  that  the  first  judg- 
ment may,  notwithstanding  the  second,  be  enforced  by 
execution;  **^*'  and  this  is  also  the  rule  in  Alabama  and 
Texas,  at  least  in  regard  to  statutory  judgments  on 
forthcoming  and  delivery  bonds.^^*^ 

Where  from  any  cause  a  judgment  is  by  the  record, 
or  by  the  return  of  execution,  shown  to  be  satisfied,  it 
would  certainly  be  very  irregular  to  issue  execution, 
although  the  entry  of  satisfaction  was  made  through 
mistake.  In  such  cases,  if  sufficient  cause  exists  for 
vacating  the  apparent  satisfaction,  application  should 

103  Chitty  V.  Glenn,  3  T.  B.  Mon.  425;  Whiting  v.  Boebee,  12  Ark. 
549;  Freeman  on  Judgments,  sees.  215,  216.  In  several  eases  a 
statutory  judgment  arising  by  force  of  the  law  on  the  forfeiture 
of  bonds  has  been  held  to  be  a  full  discharge  of  the  original  judg- 
ment. Witherspoon  v.  Spring,  3  How.  (Miss.)  GO,  32  Am.  Dec.  310; 
King  V.  Ten-y,  G  How.  (Miss.)  .")13;  Brown  v.  Clarke,  4  How.  (U.  S.) 
4;  Bank  of  U.  S.  v.  Patton,  .".  How.  (:\Iiss.)  2UU,  35  Am.  Dec.  428; 
Wright  V.  Yell,  13  Ark.  503,  58  Am.  Dec.  :J3G;  Hanna  v.  Guy,  3  Bush, 
91;  Cook  V.  Armstrong,  25  Miss.  03;  Neale  v.  Jeter,  20  Ark.  U8; 
Black  V.  Nettles,  25  Ark.  600;  Lipscomb  v.  Grace,  26  Ark.  234;  Com- 
monwealth V.  Merrigan,  8  Bush,  132;  Joyce  v.  Farquhar,  1  A.  K. 
Marsh.  20. 

104  Weeks  v.  Pearson,  5  N.  H.  324;  Griswold  v.  Hill,  2  Paine,  492. 

105  Jackson  v.  Shaffer.  11  Jolms.  51.!;  Mumford  v.  Stocker,  1  Cow. 
178;  Doty  v.  liussell,  5  Wend.  129;  Andrews  v.  Smith.  9  Wend.  53; 
Bates  V.  Lyons,  7  Paige,  86;  Howard  v.  Sheldon,  11  Paige,  558;  Mil- 
lard V.  Whitaker,  5  Hill,  408;  Small  v.  Wheaton,  2  Abb.  Pr.  316;  4 
D.  D.  Smith,  427;  Smith  v.  Anderson,  18  Md.  520. 

loopatton  V.  Hamner,  33  Ala.  307;  Cole  v.  Kobertson,  6  Tex.  350, 
55  Am.  Dec.  784. 


&J  I8SUIN(;  THE  OKIOINAL  EXKCUTIOX.  §  20 

first  he  inade  to  the  court  for  such  vacation,  and  for 
leave  to  issue  execution  before  auy  further  steps  are 
taken  toward  the  enforcement  of  the  judgment.'"'' 
But  it  must  be  admitted  that  due  respect  for  this  rule 
has  not  been  uniformly  enforcid.  Thus  Avhcre  i)lain- 
tiff  executed  a  satisfaction  piece,  and  delivered  it  to  a 
third  person  Avith  authority  to  file  it  on  compliance 
with  certain  conditions,  and  it  was  filed  without  such 
compliance,  the  court  held  that  the  plaintiff  was  en- 
titled to  issue  execution  without  asking  for  leave  of 
the  court,  and  while  the  satisfaction  remained  in  ap- 
parent force.^"**  The  pendency  of  an  action  upon  a 
judgment  has  no  effect  upon  the  right  to  issue  execu- 
tion thereon.  ^**^ 

§  20.  Executions  on  Void  Judgments  or  Orders.— It  is 
■not  sufficient  that  the  judgment  on  which  execution 
issues  appears  to  be  final,  and  is  perfect  in  form.  It 
must  at  least  be  so  far  valid  as  to 'be  impregnable  to 
collateral  assault.  "A  void  judgment  is  in  legal  effect 
no  judgment.  By  it  no  rights  are  divested.  From  it 
no  rights  can  be  obtained.  Being  worthless  in  itself, 
all  proceedings  founded  upon  it  are  equally  worthless. 
It  neither  binds  nor  bar.s  any  one.  All  acts  performed 
under  it  and  all  claims  flowing  out  of  it  are  void.  The 
parties  attempting  to  enforce  it  may  be  responsible  as 
trespassers.  The  purchaser  at  a  sale  by  virtue  of  its 
authority  finds  himself  without  title  and  without  re- 
dress." ^^^     An  execution-issued  by  a  clerk  without  the 

107  Foot  V.  Dillaye,  65  Barb.  521;  Ackerman  v.  Ackermau,  14  Abb. 
Pr.  229;  Snipes  v.  Beezley,  5  Or.  420. 

108  Audersun  v.  Nicholas,  5  Robt.  G34. 

109  Gushing  v.  Arnold,  9  Met.  23;  Moor  v.  Towlo,  3S  Me.  133;  Free- 
man on  Judjrments.  sec.  440. 

110  Freeman  on  .Tudsrnients,  see.  117.  eitincr  Campbell  v.  MeCai  an, 
41  lU.  45;  Roberts  v.  Stowers,  7  Bush,  2i>5;  Huls  v.  Buutiu,  47  111. 


§  21  ISSUING  THE  ORIGINAL  EXECUTION.  5& 

authority  of  any  judgment  whatever,  like  that  issued 
on  a  void  judgment,  has  no  validity/^^ 

If  tlie  judgment  on  which  an  execution  has  issued  is 
void,  the  defendants  are  not  estopped  from  asserting 
that  fact  by  giving  a  redelivery  or  forthcoming  bond 
enabling  them  to  retain  possession  of  the  property 
levied  upon.  The  giving  of  such  a  bond  may  estop  the 
parties  from  interposing  objections  resting  upon  mere 
iregularities  in  the  proceedings,  but  cannot  preclude 
them  "from  afterward  asserting  that  all  the  prior  pro- 
ceedings are  absolutely  and  utterly  void."  *^^ 

§  21.  Who  may  Sue  out,  and  His  Remedies  when  De- 
nied its  issuance. — As  the  judgment  is  the  property  of 
the  plaintiff,  he  alone,  while  the  property  remains  his, 
is  entitled  to  exercise  dominion  over  it.  As  a  writ  of 
execution  is  the  only  means  by  which  the  i)roperty 
can  be  made  productive,  the  owner  of  the  property  is 
necessarily  the  person  entitled  to  call  for  the  writ;  to 
withhold  the  writ  from  him  is  in  effect  to  withhold 
from  him  the  beneficial  enjoyment  of  his  property;  and 
to  alloAv  another  to  call  for  or  to  control  the  writ  i& 
to  turn  tlie  dominion  of  property,  over  to  one  who  has^ 
no  right  thereto.  Of  course,  ownership  over  judg- 
ments, like  ownership  over  all  other  kiiu's  of  [iroperty. 
may  be  exercised  in  person  or  by  duly  conslituted 
agents.     But  as  the  plaintiff  is  the  only  person  entitled 

397;  Sherrill  v.  Goodnim.  3  Humpli.  4.30:  Andrews  v.  St:it(\  2  Snee  I, 
5.^0;  Hollingsworth  v.  Bagley,  35  Tex.  34.^;  Morton  v.  Root,  2  Dill. 
312;  Cora.  Bank  v.  Martin,  9  Smedes  &  M.  613;  Hnrgis  v.  IMors^e.  7 
Kan.  417.  See,  also,  Cornell  v.  Barnes.  7  Hill,  35;  Dawson  v.  Wells. 
3  Ind.  39S;  Meyer  v.  :Mintor)ye,  106  111.  414;  Olson  v.  Nunnally,  47 
Kan.  391,  27  Am.  St.  Eep.  296;  White  v.  Foote  L.  Co.,  29  Va.  385,. 
6  Am.  St.  Kep.  O.jO. 

111  Criswell  v.  Ragsdale,  18  Tex.  443. 

112  Olson  V.  Nunnally,  47  Kan.  391,  27  Am.  St.  Rep.  29G. 


59  ISSUING  THE  ORIGINAL  EXECUTION.  {  21 

to  the  fruits  of  the  judgment,  no  execution  ran  prop- 
erly issue  except  at  his  instance  or  that  of  his  attorney 
or  agent. **^ 

Though  it  is  the  duty  of  the  clerk  to  issue  the  writ 
on  proper  demand  therefor,  he  has  no  authority  to  act 
of  his  own  motion/*'*  and  if  he  does  so  his  action  can- 
not be  attributed  to,  or  chargeable  against,  the  plain- 
tiff unless  ratified  by  him  either  in  express  terms  or 
by  acquiescence.**'*  Where  a  deputy  clerk  issued  exe- 
cution without  authority  from  the  plaintiff,  and  after- 
ward became  the  purchaser  at  a  sale  thereunder,  it 
was  held  that  he  could  take  no  benefit  from  his  pur- 
chase, although  no  actual  fraud  entered  Into  the  trans- 
action; but  that  a  grantee  from  such  clerk  for  value 
and  without  notice  of  the  irregularity  could  not  be  dis- 
turbed in  his  title.*** 

An  execution  may  be  issued  by  the  clerk  of  the  court 
without  the  authority  or  knoMledge  of  the  plaintiff. 
In  that  event  the  plaintiff,  on  becoming  aware  of  such 
issuance,  may  ratify  it,  and,  upon  such  ratification, the 
writ  seems  to  become  and  renmin  as  effici'^nt  and  unob- 
jectionable as  though  originally  issued  by  authority.**'' 

"s  Stato  V.  Wilkins,  21  Ind.  217:  Watt  v.  Alvord.  2.")  Irnl.  535; 
Wills  V.  Chandler,  2  Fed.  Rep.  273;  Xewklrk  v.  Chapron,  17  111. 
345;  Osgood  v.  Brown.  Freem.  Cli.  292;  WicklilT  v.  Robinson.  18 
111.  145;  Ex  parte  Hampton,  2  G.  Greene.  137;  Nunemacher  v.  Ingle, 
20  Ind.  13.";  Brush  v.  Lee,  36  N.  Y.  40;  ^IcDouald  v.  O'Flynn.  3 
Daly,  42;  Galle  v.  Tode,  148  N.  Y.  270;  State  v,  Pilsbury,  35  La.  Ann. 
468;  Jackson  v.  Scanland,  65  Miss.  481. 

1"  Smith  V.  Howard.  41  Vt.  74. 

115  Seavey  v.  Bennett,  64  Miss.  735;  Davis  r.  MrCann.  143  Mo.  172. 

116  Lewis  V.  Phillips.  17  Ind.  lOS,  79  Am.  Dec.  4G7.  Where  after 
death  of  plaintifT  e.xecution  was  taken  out  in  his  name  by  persons 
not  appearing  to  have  any  authority  to  do  so,  the  court  seemed  in- 
clined to  the  opinion  that  it  was  void.  Bellinger  v.  Ford,  14  Barb. 
251.  An  execution  issued  by  a  clerk,  without  authority,  may  be 
quashed  or  enjoined.     Shakleford  v.  Apperson.  6  Gratt.  451. 

1"  Clarkson  v.  White,  4  .T.  J.  Marsh.  529,  2ii  Am.  Dec.  229;  Lercb 
V.  Gallup,  67  Cal.  595. 


§  21  ISSUING  THE  ORIGINAL  EXECUTION.  60 

Doubtless  the  ratification  may  be  Inferred  from  very 
sliglit  circumstances,  when  the  knowledge  of  the  exist- 
ence of  the  writ  is  brought  home  to  plaintiff.  Such 
ratification  is  inferable  from  knowledge  on  the  part 
of  the  plaintiff  of  the  issuing  of  the  writ  and  of  the 
action  taken  for  its  enforcement  without  any  objection 
on  his  part/-*^*  and  necessarily  results  from  his  recep- 
tion of  the  proceeds  of  the  writ  with  notice  of  the  cir- 
cumstances in  which  it  was  issued.^^^  Nevertheless, 
it  may  happen  without  any  fault  or  neglect  on  the  part 
of  the  plaintiff  that  the  writ  is  issued  and  executed 
without  his  knowledge  and  to  his  prejudice.  In  such 
case,  either  he  or  the  purchaser  at  the  execution  sale 
must  suffer  a  loss;  and  so  far  as  the  question  has  been 
considered,  it  has  been  -held,  and  perhaps  wisely,  that 
the  loss,  if  any,  falls  on  him,  and  that  the  purchaser, 
if  he  acted  in  good  faith,  takes  title  although  the  sale 
was  without  plaintiff's  knowledge,  and  realized  a  sum 
less  than  the  value  of  the  property,  and  insufficient  to 
satisfy  the  writ.*^**  This  is  upon  the  ground  that  the 
purchaser  is  not  bound  to  look  behind  the  judgment 
and  writ,  and  may  safely  presume  that  the  acts  of  the 
officers,  apparently  within  the  scope  of  their  powers 
and  duties,  were  not  unauthorized.  Until  the  contrary 
is  shown,  an  execution  will  be  presumed  to  have  issued 
at  the  instance  of  the  plaintiff.^-^ 

Tie  who  is  entitled  to  execution  may,  in  his  demand 
therefor,  act  either  in  person  or  by  his  attorney  or  other 

118  W^ells  V.  Bower,  126  Ind.  115,  22  Am.  St.  Rep.  570. 

119  Lerch  v.  Gallup.  G7  Cal.  595. 

120  Sowles  V.  Harvey,  20  Ind.  217,  83  Am.  Dec.  315;  Splahn  v.  Gil- 
lespie, 48  Ind.  410;  .Tohnston  v.  Murray,  112  Ind.  154.  2  Am.  St.  Rep. 
174;  Wells  v.  Bowen,  126  Ind.  115,  22  Am.  St.  Rep.  570. 

121  Niantie  Bank  v.  Dennis,  37  111.  381;  Smith  v.  Perlvins,  81  Tex. 
152,  157,  26  Am.  St.  Rep.  794. 


«1  ISSUING  THE  ORIGINAL  EXECUTION.  §  21 

agent.*^^  If  he  has  appoarod  in  tlie  action  by  an  at- 
torney, it  is  perhaps  tlie  duty,  and  it  is  certainly 
within  the  implied  anthorlty,  of  the  latter,  on  behalf 
of  his  client,  to  procure  the  issuing  of  an  execution. *^^ 
But  the  authority  of  the  attorney  does  not  exclude  or 
suspend  that  of  the  client.  Hence,  the  latter  need  not 
act  by  his  attorney  in  demanding  the  writ,  but  may 
personally  take  it  out  without  advi^^ing  with  his 
counsel.*''^  An  execution  may  be  issued  by  a  different 
attorney  from  the  one  employed  when  judgment  was 
entered, ^'°  though  no  formal  substitution  be  made. 
The  authority  of  an  attorney  or  other  agent  professing 
to  act  for  the  plaintiff  to  take  out  execution  cannot  be 
questioned  by  one  whose  only  interest  is  that  of  a 
junior  execution  creditor  of  the  defendant  in  tlie  writ. 
126  rpjjg  plaintiff  may  control  his  own  execution  free 
from  the  interference  of  his  attorney  and  of  the  officers 
of  the  court.  ^^'^ 

When  the  plaintiff  has  ceased  to  have  any  interest  in 
the  judgment,  by  reason  of  his  having  assigned  it  to 
another,  his  right  to  control  process  also  ceases. 
Whether  the  law  recognizes  the  assignment  as  a  legal 
or  only  as  an  equitable  transfer,  it  nevertheless  allows 
the  assignee  to  control  the  execution.^'® 

An  assignment  of  a  judgment  made  as  collateral 
security  for  a  debt   may  reserve   to   the  plaintiff   the 

122  Steele  V.  Thompson,  62  Ala.  323. 

123  Harrington  v.  Binns,  3  F.  &  F.  942;  Union  Bank  v.  Geary,  5 
Pet.  98;  Erwin  v.  Blake,  8  Pet.  18. 

124  Jones  V.  Spears,  5G  Cal.  163. 

125  Cook  V.  Ditkerson,  1  Dner.  679;  Thorp  v.  Fowler,  5  Cow.  446; 
Tipping  V.  .Tolmson.  2  Bos.  &  P.  3,'7. 

i26Holshiie  V.  Morgan,  170  Pa.  St.  217. 

127  Roddick  V    Cloud.  2  Gilm.  G70;  Morgan  v.  People.  59  111.  58. 
.128  Corriell  v.  Doolittle,  2  G.  Greene.  385;  Owens  v.  Clark,  78  Tex. 
547;  Wilgus  v.  Bloodgood,  33  How.  Pr.  289. 


§  21  ISSUING  THE  ORIGINAL  EXECUTION.  62 

right  to  issue  execution  and  take  other  necessary  and 
proper  steps  for  the  collection  of  the  judgment,  as  if 
no  assignment  had  been  made.*^**  Because  of  the  as- 
signment of  a  judgment  it  may  sometimes  be  proper 
to  issue  execution  in  the  name  of  the  original  plain- 
tiff when  otherwise  such  issuing  would  be  improper,  as 
where,  after  the  assignment,  he  has  diid.  In  this  event 
the  assignee  continues  entitled  to  execution  and  may 
procure  its  issuing  without  taking  any  notice  of  the 
death  of  the  plaintiff.^^^  The  assignment  may,  doubt- 
less, be  involuntary  as  well  as  voluntary,  and  when- 
ever any  person  has,  by  operation  of  law,  become  en- 
titled to  the  proceeds  of  the  judgment,  he  is  entitled  to 
execution  thereon.  Therefore,  a  sheriff  who  has  levied 
upon  a  judgment  in  a  state  where  it  is  subject  to  such 
levy  is  entitled  to  an  execution  to  enable  him  to  collect 
it  and  thereby  make  his  levy  effective. ^^^ 

A  stranger  may  acquire  an  equitable  right  to  the 
benefit  of  the  execution,  or  to  the  property  upon  which 
it  is  levied,  and  such  equitable  right  may,  in  most  cases, 
give  him  authority  to  sue  out  and  conduct  the  process, 
or  to  object  to  its  regularity  or  validity;  but  he  can- 
not do  so  by  proceedings  in  the  case  in  his  own  name, 
upon  or  against  the  process,  for  the  purpose  of  enforc- 
ing or  abrogating  the  same;  he  must  do  it  in  the  name 
of  a  legal  party  to  the  process,  or  one  who  can  be  made 
so.  And  this  authority,  so  derived,  to  use  the  name  of 
a  party  to  the  process  of  a  court  of  law,  will  be  so  far 
recognized  by  such  court  as  to  preclude  the  interven- 
tion of  such  party  for  the  purpose  of  defeating  it.  But 
a  court  of   law  cannot   tolerate   the   intromission  of 

129  Collins  V.  Smith.  75  Wis.  392. 

130  Christ  V.  Flann.agan.  2?,  Colo.  140. 

131  Henry  v.  Trayiior,  42   Minn.  234. 


«3  ISSUING  THE  ORIGINAL  EXECUTION.  |  21 

<^quitable  claimants  into  or  against  its  process  as  if 
they  were  legal  parties  thereto;  which  would  break  in 
upon  its  forms  and  modes  of  administering  justice, 
and  present  for  its  adjudication  colhiteral,  and  indeed 
irrelevant,  questions  arising  out  of  the  derivation  of 
their  interests;  for  equitable  claimants  can  acquire  no 
better  or  other  right  to  prosecute  or  defend  the  process 
under  or  against  which  they  chiim  than  that  of  the 
I)arties  from  whom  they  derive  th(4r  interest.*^^ 

As  a  judgment  for  the  recovery  of  money  or  property 
is  fruitless  unless  some  one  is  entitled  to  execution 
thereon,  it  must  follow  that  every  person  in  whose 
favor  a  judgment  may  be  lawfully  rendered  and  en- 
tered is  entitled  to  demand  that  an  execution  issue  for 
its  enforcement,  unless,  from  his  t(  iithr  years  or  want 
of  mental  capacity,  the  law  deems  him  incompetent  to 
act  for  himself,  in  which  event  it  is  obvious  that  a 
guardian  should  be  a^^pointed  for  him,  and,  when  ap- 
])ointed,  should  be  the  only  person  authorized  to  decide 
whether  or  not  an  execution  may  issue.  Though  a 
guardian  has  resigned,  if  the  order  accepting  his  resig- 
nation provides  that  he  shall  be  discharged  upon  pay- 
ment and  delivery  of  the  effects  in  his  hands  to  his 
ward,  the  guardian  retains  the  right  to  sue  out  execu- 
tion upon  a  judgment  entered  in  his  favor  as  such 
guardian.  ^'"'"'^ 

In  the  event  of  the  death  of  the  plaintiff,  the  right 
io  demand  execution  of  the  judgment  must  pass,  in  the 
first  instance,  to  his  personal  representative  if  it  be  for 
Ihe  recovery  of  personal  property,  and  to  his  heirs  if  it 
be  for  the  recovery  of  lands.     An  executor  or  adminis- 

182  Wallop's  Adm'r.  v.  Scarburjrh,  5  Oratt.  4;  Haden  v.  Walker. 
5  Ala.  88;  Fisk  v.  Lamoroaux,  48  Mo.  523;  Weir  v.  Penulugton,  11 
Ark.  745. 

133  Longino  v.  Delta  Bank,  75  Miss.  407. 


g  '-^1  ISSUING  THE  ORIGINAL  EXECUTION.  C4 

trator,  to  entitle  him  to  execution,  must  be  appointed 
in  the  state  wherein  the  execution  is  i(>su(*l,  or,  if  ap- 
pointed in  another  state,  must  have  complied,  with  the 
provisions  of  the  statute  requisite  to  give  him  author- 
ity to  act.  If  this  statute  provides  that  a  foreign  ad- 
ministrator may  sue  in  the  courts  of  the  state,  or  may 
receive  without  suit  and  give  a  valid  quittance  for  any 
property  of  or  debts  due  his  intestate,  on  complying 
with  certain  provisions  of  the  statute,  a  writ  issued  at 
the  request  of  such  administrator,  before  he  has  sa 
complied,  is  invalid,  and,  though  he  should  subse- 
quently comply  therewith,  his  compliance  does  not,  by 
relation,  validate  the  unauthorized  execution. ^^* 

Upon  a  judgment  in  favor  of  a  married  woman  and 
against  her  husband,  she  is  entitled  to  the  issuing  of 
an  execution,  whether  it  Avas  rendered  before  or  after 
her  marriage.*^^  She  must  equally  be  entitled  to  exe- 
cution when  the  judgment  is  against  a  third  person 
and  constitutes  a  part  of  her  separate  estate,  but  where 
the  common-law  rule  still  prevails  that  the  wife's 
choses  in  action  may  be  reduced  to  possession  by  her 
husband  and  thereby  made  his  property,  ^^^  it  is 
obvious  that  she  may  lose  her  right  to  execution  on 
a  judgment  in  her  favor  on  his  election  to  treat  it  as 
his  property. 

The  right  to  have  an  execution  may  be  denied  to  the^ 
plaintiff  by  the  officer  whose  duty  it  is  to  issue  it.  In 
such  case,  the  plaintiff  seems  to  have  his  choice  be- 
tween these  remedies:  he  may  sue  for  the  damages  oc- 

134  Jackson  v.   Scanlaiid,  65  Miss.  481. 

135  Kineade  v.  Cimningliam.  118  Ta.  St.  501;  Rose  v.  Latshaw,  90 
Pa.  St.  238. 

136  Note  to  Caplinger  v.  Sullivan,  37  Am.  Dec.  577;  note  to  Boozer 
V.  Addison.  40  Am.  Dec.  47. 


65  ISSUING  THE  ORIGINAL  EXEC  U  HON.  §  21 

casioned  by  the  denial  of  his  right;  ^^'^  or  be  may,  by 
motion  or  by  mandamus,  compel  tlie  issuing  of  the 
writ.*'"*  In  California,  on  the  other  hand,  it  was  at  an 
early  day  decided  that  one  entitled  to  an  execution  on 
a  judgment  for  the  recovery  of  money,  which  the  clerk 
refused  to  issue,  had  an  am])le  remedy  by  motion  in  the 
original  action  or  by  a  suit  against  the  clerk  and  the 
sureties  upon  liis  official  bond,  and,  therefore,  that  he 
was  not  entitled  to  a  writ  of  mandate  to  compel  the 
issuing  of  the  writ.*^®  Even  where  this  rule  obtains, 
it  is  manifest  that  the  plaintiff  must  sometimes  be  en- 
titled to  a  writ  of  mandate  when  his  remedy  by  action 
against  the  clerk  is  inadequate,  because  the  amount  of 
the  judgment  is  far  in  excess  of  the  amount  of  his 
official  bond.*"*"  There  are  also  oases  in  which  the 
refusal  to  issue  the  M'rit  is  due  to  the  action  of  the  court 
rather  than  of  the  clerk,  as  where  the  court,  w^ithout 
authority  to  do  so,  has  made  an  order  staying  proceed- 
ings, in  which  event  relief  may  be  had  by  mandamus 
where  the  order  itself  is  not  subject  to  appeal.**^  More 
recently  the  courts  of  California,  without  overruling  or 
noticing  the  earlier  decisions  upon  the  subject,  have 
repeatedly  directed  writs  of  mandate  to  issue,  compel- 
ling officers  whose  duty  it  was  so  to  do  to  issue  writs 
of  execution  in  favor  of  parties  entitled  thereto.**^ 

1"  Gaylor  v.  Hiint.  23  Ohio  St.  255;  Steele  v.  Thompson,  62  Aln. 
323;  McFarland  v.  Burton,  89  Ky.  294;  Badham  v.  Jones,  64  N.  C. 

655. 

i38Terhume  v.  Barcalow,  6  Halst.  3S;  Laird  v.  Abrahams,  3 
Green  (N.  J.),  22;  People  v.  Yale,  22  Bart).  502;  Stafford  v.  Union 
Bank,  17  How.  275.  See  Jones  v.  McMahan,  30  Tex.  726;  State  v, 
Vogel,  6  Mo.  App.  526. 

139  rioodwin  V.  Glazer.  10  Cal.  3.33:  Fulton  v.  Hanna.  40  Cal.  278. 

140  Jones  V.  :McMahan.  30  Tex.  726. 

141  Avory  t.  Superior  Court,  57  Cal.  247. 

142  Hamilton  v.  Tutt.  6.")  C.il.  .^>7:  Hayward  v.  Pimental,  107  CaL 
886;  Garoutte  v.  Haley.  104  Cal.  497. 

Vol.  I.— 5 


§  22  ISSUING  THE  ORIGINAL  EXECUTION,  66 

§  22.  Persons  against  Whom  Execution  may  Is- 
sue.— "The  power  and  aiithority  of  our  courts  extend 
over  every  class  of  persons  and  every  species  of  prop- 
erty situate  v^dtlnn  the  territorial  limits  in  which  those 
courts  are  authorized  to  act,  and  subject  to  the  same 
sovereignty  which  organized  the  courts,  and  invested 
them  with  judicial  functions.  Every  subject  is,  there- 
fore, liable  to  be  made  a  party  litigant,  and  to  be  bound 
by  the  result  of  the  litigation.  Those  disabilities  aris- 
ing from  infancy,  from  coverture,  or  from  mental 
infirmities,  which  render  parties  incapable  of  being 
bound  by  their  contracts,  do  not  have  the  effect  of  ex- 
empting any  person  from  the  control  of  the  courts."  ^^^ 

A  plaintiff  may  direct  his  writ  to  be  levied  upon  the 
property  of  one  defendant  rather  than  upon  that  of  an- 
other, but  has  no  right  to  issue  an  execution  against 
any  less  number  than  all  of  the  defendants  against 
Avhom  the  judgment  has  been  recovered. ^^*  It  has 
even  been  held  that  an  execution  from  which  any  of  the 
defendants  liable  thereto  has  been  omitted  is  void.^**' 
To  this  Ave  cannot  assent.  Such  an  omission  creates 
a  variance  between  the  writ  and  the  judgment  on  ac- 
count of  which  the  writ  may  be  amended,  or  possibly 
quashed,  but,  if  no  action  is  taken  with  respect  to  it 
tending  either  to  correct  or  assail  it,  it  doubtless  con- 
stitutes a  justification  to  the  officer  acting  under  it, 

143  Freeman  on  Judgments,  sec.  142.  As  to  judgments  against 
married  women,  lunatics,  infants,  and  deceased  persons,  see  Free- 
man on  Judgments,  sees.  142-153. 

144  Brinton  v.  Gerry,  7  111.  App.  2.38;  Tanner  v.  Grant,  10  Bush, 
362;  Linn  v.  Hamilton,  34  N.  J.  L.  305;  Gatewood  v.  Burns,  99  N.  C. 
S57. 

145  Tanner  v.  Grant,  10  Bush,  362;  Crittenden  v.  Leitensdorfer,  35 
Mo.  239;  Ex  parte  Kennedy,  4  Cranch.  C.  C.  462. 


€7  ISSUING  THE  OUIiJlXAL  EXECUTION.  §  22 

and  an  execution  sale  based  upon  it  cannot  be  collater- 
ally attacked  and  thereby  avoided. ^^* 

It  would  be  a  contradiction  of  terms  to  say  that  all 
persons  may  be  bound  by  judgments,  and  then  to 
<ieclare  that  some  persons  are  exempt  from  having 
executions  issued  against  them.  The  decisions  in  re- 
gard to  the  persons  wlio  may  be  parties  to  judgments 
are  not  perfectly  hai'monious;  but  wherever,  under 
the  law  as  understood  in  any  particular  state,  a  person, 
or  class  of  persons,  may  be  made  parties  litigant,  and 
bound  by  judgments  against  them,  it  must  follow,  in 
Ihe  absence  of  statutes  to  the  contrary,  that  the  same 
persons  may,  by  writs  of  execution,  be  made  to  satisfy 
such  judgments.  In  other  words,  when  a  judginent  is 
valid  against  the  defendant,  an  execution  based  upon 
it  must,  unless  expressly  forbidden  by  statute,  be 
equally  valid.  Execution  may  therefore  issue  against 
a  lunatic,'"*'  and  also  against  a  married  woman.'^® 
In  Kentucky,  however,  an  execution  cannot  issue 
against  a  person  who  has  been  adjudged  insane,  and, 
if  issued,  is  held  to  be  a  nullity.**® 

There  are  some  familiar  instances  in  which  the  only 
effect  of  a  judgment  is  to  establish  the  existence  of  a 
liability  against  the  defendant;  and  in  which  the  plain- 
tiff cannot  issue  execution,  but  must  obtain  satisfaction 
in  some  other  manner  ])rovided  by  law.  Thus,  a  judg- 
ment against  a  county,  or  a  municipal  corporation,  is 

146  Flanders  v.  Batten,  50  Ilun.  rA2:  123  N.  Y.  627;  Jones  v.  Dove. 
7  Or.  407;  Mortland  v.  Himes.  8  Pa.  St.  205;  Sheetz  v.  Wyukooi),  74 
Pa.  St.  198;  post,  sec.  43;  Wilson  v.  Nance,  11  Humph.  ISO. 

i<7  Ex  parte  I.eigliton,  14  Mass.  207;  Thatcher  v.  Diusmore,  5 
Mass.  299. 

143  Moncrief  v.  Ward.  10  Abb.  Pr.  354,  note;  Baldwin  v.  Kimmel, 
10  Abb.  Pr.  353;  1  Kobt.  109;  Charles  v.  Lowenstein,  20  How.  Pr. 
29;  Fox  V.  Hatch,  14  Vt.  .340.  39  Am.  Dec.  226. 

1*8  Buckler  v.  Keese,  100  Ky.  330. 


§  22  ISSUING  THE  ORIGINAL  EXECUTION.  68 

ordinarily  no  more  than  the  mere  establishment  of  a 
valid  claim,  which  it  is  the  duty  of  the  proper  officers 
to  provide  means  of  payment,  out  of  the  revenues  of 
the  defendant.  It  is  error  to  award  or  issue  execution 
on  such  a  judgment.^^^     This  rule  is  not  of  universal 

100  Enieric  v.  Gilman,  10  Cal.  404,  70  Am.  Dec.  742;  Kinmundy 
V.  Mahau,  72  III.  402;  Wilsou  v.  L'omiuissiouers,  7  Walls.  <5c  S.  107; 
Board  of  Supervisors  v.  Edwards,  70  111.  544;  Kuox  County  a'.  Arms, 
22  111.  175;  King  v.  McDrew,  31  111.  418;  Gilman  v.  Contra  Costa 
Countj',  8  Cal.  52,  68  Am.  Dec.  290;  Sharp  v.  Contra  Costa  County, 
34  Cal.  290;  Canton  v.  Dewey,  71  111.  A  pp.  340;  Hoopson  v.  Moiris,, 
21  111.  App.  307;  B'd  of  Education  v.  Hoag,  21  111.  App.  588;  Pekin 
V.  McMalion,  154  111.  141,  45  Am.  St.  Rep.  114;  Emery  County  v.  Bur- 
resen,  14  Utah,  328,  00  Am.  St.  Rep.  80S;  City  of  Chicago  v.  Has- 
ley,  25  111.  485.  In  this  last  case  a  judguu-ut  for  damages  had  been 
recovered  against  the  city  of  Chicago,  and  execution  issued  thereon, 
A  motion  to  quash  the  Avrit  having  been  made  and  refused,  an 
appeal  was  taken  to  the  supreme  court,  where  the  action  of  the 
subordinate  court  was  reversed.  Breese,  J.,  in  pronouncing  the 
opinion  of  the  court,  said:  "There  can  be  no  doubt  that  the  prop- 
erty of  a  private  corporation  may  be  seized  and  sold  under  a  fi.  fa- 
for  the  payment  of  its  debts,  as  in  the  case  of  an  individual,  such, 
corporation  being  bound  to  provide  for  its  just  debts,  whether  pay- 
ment is  made  by  a  forced  sale  of  its  property  for  that  purpose,  or 
with  money  from  its  safe. 

"The  nature,  objects,  and  liabilities  of  political,  municipal,  or 
public  corporations,  we  think,  stand  on  different  grounds.  These 
corporations  signify  a  community,  and  are  clothed  with  very  ex- 
tensive civil  authority  and  political  power.  All  municipal  corpo- 
rations are  both  public  and  political  bodies.  They  are  the  embodi- 
ment of  so  much  political  power  as  may  be  adjudged  necessary,  by 
the  legislature  granting  the  charter,  for  the  proper  government  of 
the  people  within  the  limits  of  the  city  or  town  incorporated,  and 
for  the  due  and  efficient  administration  of  their  local  affairs.  For 
these  purposes,  the  authorities  can  raise  revenue  by  taxation,  make 
public  improvements,  and  defray  the  expenses  thereof  by  tJixation, 
exercise  certain  judicial  powers,  and  generally  act  within  their 
limited  spheres,  as  any  other  jjolltiral  body,  restrained  only  by  the 
charters  creating  tliem — beyond  thcin.  they  cannot  go.  This  power 
of  taxation  is  plenary,  and  furnislifs  ordinarily  ilic  only  means  sucn 
corporations  possess  by  which  to  pay  tlieir  del)ts.  They  cannot 
be  said  to  possess  property  liable  to  execution,  in  the  sense  an  in- 
dividual OAvns  property  so  subject,  for  they  liave  the  control  of  the 
corporate  property  only  for  corporate  purposes,  and  to  be  used  and 


«9  ISSUING  THE  ORIGINAL  EXECUTION.  §  2% 

application.  In  Wisconsin,  an  execution  may,  in  cer- 
tain contingencies,  issue  against  a  eounty.*'^*^  Though 
the  statement  is  made  in  general  terms  in  some  of  the 
decisions  that  an  execution  cannot  issue  against  a 
county  or  a  municipal  corporation,  and  that  a  judg- 
ment awarding  it  is  erroneous  and  must  be  reversed, 
it  seems  to  us  that  this  general  statement  cannot  be 
universally  true.  The  funds  and  property  possessed  by 
these  corporations  are  ordinarily  not  subject  to  execu- 
tioii,  and  he  who  has  a  claim  against  them  is  restricted 
in  his  remedies  for  its  enforcement  to  the  presentation 
of  claims  for  allowance,  and  after  thAir  allowance, 
by  compelling  them  to  be  met  by  funds  already  in  the 
treasury,  or  by  exercising  the  power  of  taxation  for  the 
purj>ose  of  raising  such  funds.  It  is  generally  con- 
<'eded,  however,  that  a  municipal  corporation  may  have 
property  to  which  it  occupies  substantially  the  relation 
of  a  private  proprietor,  and  which  may,  therefore,  be 

disposed  of  to  promote  such  purposi's.  auil  such  only.  Levyiug  on 
aud  selliug  such  properly,  and  reuiovini;  it,  would  work  the  most 
serious  injury  in  any  city.  JNIanj  of  our  cities,  Chicago  especially, 
have  costly  waterworks,  indispensable  to  the  lives  aud  health  of 
the  citizens.  These  works  are  as  much  the  property  of  the  city  as 
any  other  it  may  control,  and  in  appellee's  view,  liable  to  be  seized 
aud  sold  on  e::ecution,  to  the  great  discomfort  and  probable  ruin 
of  the  inhabitants.  Fire-eugines  are  also  indispensable;  they,  too, 
can  be  seized  and  sold,  aud  a  great  city  exposed  to  the  ravages  of 
(ire,  and  all  this  to  enable  one  or  mpre  creditors  of  the  city  to  ob- 
tain the  fruit.s  of  judgments  against  the  city,  which,  by  another 
process,  not  producing  any  of  these  destructive  iucouveuieuces,  they 
could  fully  obtain.  The  money  raised  by  taxation  could  also  be 
levied  upon,  aud  the  whole  business  of  the  city  be  broken  up  and 
deranged — its  offices  and  office  furniture,  its  jails,  hospitals,  aud 
other  public  buildings,  taken  from  the  corporate  authorities  aud 
sold  to  strangers,  who  would  have  a  right  to  the  exclusive  posses- 
sion of  thtMU  if  not  redecuu'd.  In  the  absence  of  an  express  stat- 
ute authorizing  a  proceeding  frauglit  with  such  consequences,  we 
must  hold  that  fi.  fa.  cannot  issue  against  the  city  of  Chicago." 
lii  Savage  v.  Supervisors  of  Crawford  County,  10  Wis.  4y. 


§  22  ISSUING  THE  ORIGINAL  EXECUTION.  70 

seized  and  applied  to  the  payment  of  its  debts.  Where 
such  is  the  case,  it  is  clear  that  such  seizure  can  be 
directed  only  by  a  Ayrit  of  execution,  and  that  such 
writ,  therefore,  is  authorized  to  be  issued.*^^ 

Judgments  against  an  executor  or  administrator,  on 
a  cause  of  action  against  the  deceased,  are  often  yery 
similar  in  their  legal  effect  to  a  judgment  against  a 
county.  This  is  so  Tviien  they  merely  establish  the 
existence  of  a  yaild  claim  against  the  estate,  to  be  paid 
in  the  course  of  administration.  Such  a  judgment  can- 
not ordinarily  be  enforced  by  execution. ^'"••'^  On  the 
other  hand, there  are  judgments  making  administrators 
pr  executors  personally  responsible;  and  also  judg- 
nu  nts  which  under  the  law  of  the  state,  or  by  leave  of 
the  surrogate,  are  to  be  enforced  at  once,  without  wait- 
ing for  due  course  of  administration.  On  such  judg- 
ments a  writ  of  execution  may  issue.  The  question  of 
w^hether  an  execution  may  issue  against  an  adminis- 
trator or  executor  is  to  be  determined  by  considering 
the  general  scheme  authorized  by  the  laws  of  the  state 
for  the  settlement  of  the  estates  of  deceased  persons. 
If  that  scheme  requires  the  presentation  of  all  claims 
against  the  decedent  to  his  executor  or  administrator, 
and  that  such  claims  shall  be  paid  in  the  order  desig- 
nated in  the  statute  out  of  the  funds  of  the  estate,  and 
further  provides  means  by  which,  if  the  estate  has  not 
the  requisite  funds,  its  property  may  be  sold  for  the 

152  Post  §  120;  State  v.  Bucklos,  8  Ind.  App.  282,  52  Am.  St.  Rep. 
470;  O'Donnell  v.  School  District  l.T^  Pa.  St.  102;  City  of  Sherman; 
V.  Williams,  84  Tex.  421,  31  Am.  St  Kep.  06. 

"3  Bull  V.  Harris,  .31  111.  487;  Home  v.  Spivoy,  44  Cn.  010.  But 
an-  execution  in  which  the  word  "executor"  or  "administrator"  is 
added  to  the  defendants  name,  without  anything  further  to  indicate 
that  it  is  against  the  defendant  in  his  representative  capacity,  may 
he  treated  as  against  him  personally,  and  levied  upon  his  property* 
Tinsley  v.  Lee,  51  Ga.  482. 


71  ISSUING  THE  OllH.INAL  EXECUTION.  §  •-.•2 

purposo  of  paying  them,  then,  as  a  general  rule,  a 
judgment  creditor  has  no  remedy  by  execution,  and 
such  writ  cannot  properly  issue  in  his  favor.^*^     If,  on 
the  other  hand,  tlie  law,  or  a  judgment  rendered  in  pur- 
suance of  it,  directs  satisfaction  to  be  made  out  of  the 
property  in  the  hands  of  an  adminsitrator,  execution 
may  regularly  issue  against  him/^^     Sometimes  the 
executors  of  a  deccnlent,  who  was  a  member  of  a  part- 
nership, elect  to  continue  the  business  and,  in  effect, 
become  copartners  with  the  other  partners.     In  such  a 
case,  if  there  is  a  judgment  against  such  partnership, 
execution  may  issue  thereon.    It  is  not  regarded  as 
issuing  against  the  executors  in  their  official  capacity, 
but  rather  as  members  of  a  private  partnership.^^* 
Judgments  may  be  entered  against  executors  or  admin- 
istrators establishing  a  personal  liability  against  them, 
or  they  may,  in  some  of  the  states,  establish  a  liability 
against  the  estates  of  the  decedents,  to  be  satisfied  only 
out  of  the  property  in  the  hands  of  the  defendant  exec- 
utor or  administrator,  or  they  may,  in  some  instances, 
establish  a  liability,  ]>art  of  which  is  personal  and  pay- 
able by  the  administrator,  and  part  of  which  is  against 
the  estate  of  the  decedent  and  payable  out  of  its  as- 
sets.*'*''    In  each  of  these  cases  an  appropriate  execu- 
tion should  issue.     If  the  judgment  is  made  payable 
out  of  the  assets  in  the  hands  of  the  administrator,  the 
execution  based  thereon  should  so  state,  and  not  app(sir 
to  be  against  the  administrator  or  executor  personally. 
If,  on  the  other  liaiid,  the  judgment  does  not,  in  express 

iB4Allipe  V.  "Wachter,  74  111.  173;  Peckham  v.  O'llara,  74  Midi. 
287:  Cowles  v.  Hall.  113  N.  C.  S'^O. 

155  A(l:ims  V.  IIi.i.'-ins.  23  Fla.  l.'l:  Adkins  v.  ITntoliincrs.  70  Ha.  200. 

156  r,ilumh\is  W.  (^o.  V.  Hodoni)yI.  135  N.  Y.  430. 

157  i.ook  V.  Luce,  130  Mass.    240;    Greenwood    v.  McGilviay,  120 
Mass.  516. 


§  •::  ISSUING  THE  ORIGINAL  EXECUTION.  72 

terms,  provide  that  it  is  payable  out  of  the  assets  of  the 
decedent,  it  will  generally  be  construed  to  be  against 
his  administrator  or  executor  personally,  and  the  writ 
issued  thereon  should  not  be  directed  against  the  assets 
of  the  decedent,  but,  on  the  contrary,  should  be  leviable 
upon  the  property  of  the  executor  or  administrator 
named  as  a  defendant  therein.^'** 

Kg  execution  can  be  properly  issued  against  any  per- 
son unless  a  judgment  has  been  pronounced  against 
him.  Where  the  writ  is  against  one  defendant  only, 
and  is  not  supported  by  a  judgment  against  him,  it  is 
undoubtedly  void.^"^  So  where  a  writ  issues  against 
several,  some  one  of  whom  is  not  embraced  in  the  judg- 
ment, it  has  been  held  to  be  void  in  toto.^^**  We  are 
inclined  to  doubt  the  correctness  of  these  decisions,  and 
to  believe  that  the  addition  of  unauthorized  names  is  a 
variance  for  which  the  writ  ought  to  be  quashed;  but 
that,  if  permitted  to  stand,  it  must  be  treated  as  bind- 
ing on  the  persons  properly  named  therein.  It  must, 
however,  be  conceded  that  the  writ  is  void  as  against  a 
person  named  therein  as  a  defendant,  but  not  included 
in  the  judgment,  nor  can  the  writ  be  defended,  or  have 
any  validity  imparted  to  it,  by  proving  that  the  person 
against  whom  it  was  issued  without  authority  was  also 
liable  for  the  debt  upon  which  the  judgment  was 
founded.  Therefore,  the  issuing  of  an  execution 
against  the  property  of  a  married  woman  upon  a  judg- 

158  Horn(>  V.  Spivey,  44  Ga.  G1P>;  Small  v.  Small,  1(1  S.  C.  04;  Free- 
man V.  Binswanger,  59  Ga.  I.IO;  Lemon  v.  Thaxton.  59  Ga.  700; 
Horn  V.  Bird,  45  Ga.  610;  Beale  v.  Botetourt,  10  Gratt.  278;  Moore 
V.  Ferguson,  2  Munf.  421;  Barr  v.  Ban-,  2  Hen.  &  M.  26;  Keniston 
V.  Little,  30  N.  H.  31S,  64  Am.  Dec.  297;  Lynch  v,  Webster,  17  R. 
I.  513. 

159  Terrail  v.  Tinney,  20  La.  Ann.  444. 

160  Fleming  v.  Dayton,  8  Ired.  4.53;  Blanchard  v.  Blancliard.  3 
Ired.  105,  38  Am.  Dec.  710;  Peuoyer  v.  Brace,  1  Ld.  Raym.  244. 


73  ISSUING  THE  ORIGINAL  EXECUTION.  §  22 

meiit  against  her  husband  alone,  in  an  action  to  which 
she  was  not  a  party,  is  wholly  uuauthoiized,  regard- 
less of  the  question  whether  or  not  the  debt  was  for 
Jiecessaries  furnished  the  family  and  ioi-  which  she 
might,  therefore,  have  been  liable.'"^  So,  it  a  judgment 
is  entered  against  a  partnership,  giving  tlie  firm  name 
only  and  without  specifying  any  of  the  persons  who  are 
members  thereof,  there  is  no  authority  for  the  issuing 
of  an  execution  against  any  of  such  nii'iiibers  person- 
ally, and,  if  the  execution  is  so  issued,  while  being 
regular  on  its  face,  it  constitutes  a  justific;iti<n  to  the 
officer  acting  under  it,  it  is  otherwise  as  to  inc  plain- 
tiff and  his  attorney,  who  are  liable  for  wrongfully  is- 
suing the  writ  in  that  form  and  placing  it  in  the  hands 
of  the  officer,^*^^  By  virtue  of  statutes,  w^rits  of  execu- 
tion may  be  authorized  against  persons  not  nominally 
})arties  to  the  original  judgment.  A  familiar  instance 
of  this  is  the  statute  which,  on  return  of  nulla  bona,  to 
an  execution  against  a  corporation,  auiiiorizes  its 
stockholders  to  be  brought  before  the  court  on  motion, 
and  an  order  to  be  thereupon  made  for  the  issuing  of 
execution  against  them  for  their  i^'oportion  of  the 
debt.i«^ 

§  23.  By  Whom  Issued.— The  awarding  of  an  exe- 
cution is  a  judicial  act.  ''To  award  is  to  adjudge,  to 
give  anything  by  judicial  sentence."  *^*  "To  award  an 
oxecution  is  a  judicial  act,  and  not  a  ministerial  one; 
no  such  power  is  given  the  clerk  by  law.  In  England, 
when  he  issues  the  execution  it  is  by  order  of  the  court; 
here  it  is  by  virtue  of  the  judgment,  which,  it  is  deter- 

161  state  V.  Arnistrons:,  25  :Mo.  Ai>p.  .^32. 
i«2  Hamner  v.  Ballantyne,  IG  I'tali.  4r.t;.  (iT  Am.  St.  Rep.  &43. 
183  Marks  v.  Ilanly,  SO  Mo.  232;  Taxou  v.  Talinage,  ST  Mo.  13. 
t6»  Johusou  V.  Ball,  1  Yerg.  292.  24  Am.  Dec.  451. 


§  23  ISSUING  THE  ORIGINAL  EXECUTION.  74 

mined,  awards  the  execution."  ^^^  The  award  of  exe- 
cution need  not  be  mentioned  in  the  judgment,  for  it  is 
by  law  the  necessary  consequence  of  the  judgment. 
The  award  of  execution,  or  in  other  words,  tlie  granting 
of  judgment,  being  a  judicial  act,  the  judge  is  not  per- 
sonally liable  for  errors  committed  by  him  in  its  per- 
formance. But  as  the  issuing  of  execution  is  a  mere 
ministerial  act,***^^  the  officer  is  liable  for  unlawfully, 
performing  it.  Hence  in  ^Massachusetts,  a  justice  of  the 
peace,  who,  in  defiance  of  the  statute,  issued  execution 
within  twenty-four  hours  after  entering  judgment,  was 
held  responsible  in  an  action  of  trespass.^*^" 

A  ministerialv)fficer  who  is  charged  by  statute  with 
an  absolute  and  certain  duty,  in  the  performance  of 
which  another  has  a  special  cind  p(  rsonarunterest,  is 
liable  to  ma"ke  comp^tisa<ti6n,to  the  extjent  <^  any  actual 
loss  sustain^  ^y  fhd  person  speciaUy  interested, 
in  case  the  officer  refuses  or  neglects  .  to  perform 
his  duty.*^'  Therefore,  if  a  clerk  fails  to  indorse  a 
memorandum  upon  an  execution  when  required  to  do 
so  by  the  statute,  to  the  effect  that  one  of  the  parties 
thereto  is  a  surety,  and  from  such  action  of  the  clerk 
the  party  is  necessarily  injured,  he  may  recover  of  the 
clerk  the  damage  sustained  by  him,  but  he  must,  if  he 
knows  of  the  mistake  of  the  clerk,  take  such  means  as 
are  within  his  reach  to  correct  it,  and  also  to  protect 
himself  by  using  any  other  means  which  the  law  pro- 
vides for  his  indemnity.  If  the  act  or  neglect  of  the 
clerk  resulted  from  an  innocent  mistake  which  would 
have  been  corrected  upon  request,  and  the  defendant 

i«5  Daley  v.  Perry,  9  Yerg.  444. 

lesaHu^'hes  v.  Slroetin,  24  III.  647,  76  Am.  Dec.  777. 

inc  Brij^ys  v.  Wardwell,  10  Mass.  .3.56.  An  officer  issuing  exoen- 
tion  while  a  stay  bond  is  in  foree  is  liable  as  a  trespasser.  Milli- 
ken  V.  BroAvu.  10  Serg.  v^t  B.  188. 

"<  State  V.   Fleuiiny,  124  Ind.  97. 


75 


ISSUING  THE  ORIGINAL  EXECUTION. 


would  thereby  have  been  afforded  ample  means  of 
escape  from  his  loss,  he  cannot  recover  damages  of  the 
clerk   -vvhieh   he   mio-ht   have   obviated   by   reasonable 
action  on  his  part.*"**     In  other  words,  an  olllcer  is  not 
liable  for  the  unauthorized  issuing-  of  an  execution  by 
him,  if  no  injury'  resulted  therefrom.'"'*     Another  re- 
sult, folh»\vin^-  from  the  rule  that  Ihe  issue  of  execution 
is  to  be  rej^arded  as  a  ministerial  act,  is  tliat  the  officer 
havinji:  authority  to  issue  the  writ  need  not  do  it  in  per- 
son, but  may  delegate  his  authority  to  another.     It  is 
not  indisi)ensable  to  the  regularity  of  an  execution  that 
it   shouhl  be  issued ^u'  the   clerk  or  a  duly    qualified 
deputy.     If  the  j>K'rkMliiuks  propeiyl1e)can  engage  the 
services  of  an^shiKant>e;>write  f0^^       and  if  the  exe- 
cution is  mmwXuJyim*\^  with  his  name,  by 
his  (Vire(;tU)it^^'£w^QupH^  mi<rri<fade  and 
subscribed  \\i<.h  his  mwue,  ;mil'^%WiI^^inKrid(>pted  l»y 
him,  it  w<)Hldjhi  ])oint  of  law.  be  as  unicliTris  ,icf~«yS  if 
the  labor  had  l)elMr~"prTfnrrmMl-ji^lJi  own    hand.^'" 
The  same  ruling  has  been  made  in  thecTr?!r-^f  an  execu- 
1ion  issued  out  of  a  justice's  court.*'^     But  it  seems  to 
us  that  a  general  authority  to  issue  execution  cannot 
be  delegated  except  where  the  law  authorizes  the  ap- 
pointment of  a  deputy  and  such  appointment  has  been 
made;  and  that  the  cases  referred  to  go  no  further  than 
to  sustain  executions  issued  so  directly  under  the  ey*^ 
and  control  of  the  officer  that  they  must  be  treated  as 
his  acts.     Executions  are  usually  issued  by  the  clerk 
when  the  court  has  one,  and  by  the  judge  or  justice' 
•when  the  court  has  no  clerk.      In  Ncav  York  they  may 

168  State  V.  Fleming,  124  Iiul.  97. 

160  RiKkler  V.  Reese,  100  Ky.  33G. 

iTo  ^fcMalian  v.  CoIoIoukIi.  2  Ala.  70. 

t7i  Kyle  V.  Evans,  3  Ala.  482,  37  Am.  Dec.  705. 


§  24  ISSUING  THE  ORIGINAL  EXECUTION.  76 

be  issued  by  the  plaintiff  or  his  attorney.*'^^  Being  a 
mere  ministerial  act,  the  clerk  is  not  disqualified  from 
the  issuing  of  an  execution  because  he  is  attorney  for 
one  of  the  parties.^"^  He  is  not  relieved  from  the  duty 
of  issuing  the  writ  by  the  judgment  being  uncertain  in 
its  terms  and  difficult  to  execute.^''*  An  execution  is- 
sued by  a  person  having  no  authority  so  to  do  conferred 
on  him  by  law,  nor  by  delegation  from  some  competent 
official,  is  conceded  to  be  void.^''"  This  rule  applies  to 
executions  which  ai)pear  to  be  issued  by  the  proper 
officer,  but  which  in  fact  are  forgeries,*'^  and  to  writs 
issued  by  the  clerk  of  one  court  when  authorized  to  be 
issued  only  by  the  clerk  of  another.^'^'' 

§  24.  Earliest  Time  for  Issuing. — Having  treated 
of  the  courts  from  which,  and  the  judgments  and  de- 
crees on  which,  and  the  persons  for  and  against  whom, 
execution  may  issue,  we  come  next  to  the  consideration 
of  the  time  during  which  such  issuing  may  properly  be 
made.  In  treating  this  subject,  we  shall  direct  atten- 
tion, first,  to  the  earliest  period  at  which  an  execution 
may  properly  issue,  and  the  consequences  of  its  issu- 
ance before  that  period;  and  second,  to  the  latest  period 
at  ^''^hicli  an  execution  may  properly  issue,  and  the  con- 
sequences of  its  issuance  after  the  expiration  of  that 
period.  As  an  execution  is  authorized  for  the  purpose 
of  making  effectual  the  judgment  or  order  of  the  court, 
it  must,  of  course,  follow  that  the  plaintiff  may  have  it 

172  Code  of  N.  Y.,  §  24. 

173  Blount  V.  VVulls,  5.5  Ga.  282. 

174  Levy  V.  Blount,  15  La.  Ann.  573,  77  Am.  Dec.  198. 

175  Seaton  v.  Hamilton,  10  Iowa,  394;  Terry  v.  Whipple,  38  Vt. 
278;  Furman  v.  Dewell,  35  Iowa,  170. 

176  Silvan  v.  Coffee,  20  Tex.  4,  70  Am.  Dec.  371. 

177  Chandler  v.  Calcord,  1  Okla.  2G0;  Richards  v.  Belcher,  G  Tex. 
Civ.  App.  284. 


77  ISSUING  THE  ORIGINAL  EXECUTION.  §  24 

issued  as  soon  as  the  time  comes  when  he  is  entitled  to 
the  satisfaction  of  liis  judgiiieut  or  decree,  and  this  is 
generally  immediately  ui)on  its  entry,  unless  process  is 
stayed  by  some  order  or  rule  of  court.-^'^*  It  must  also 
follow  that  there  is  ho  authority  for  an  execution  until 
there  is  a  judpnent  to  be  enforced.  If  there  be  no 
judgment,  a  writ  issued  in  anticipation  of  such  judg- 
ment is  void,  and  continues  invalid  though  the  judg- 
ment be  subsequently  rendered  and  entered.*^  Some- 
times there  are  two  judgments  in  an  action  or  proceed- 
ing, and  the  right  to  execution  may  be  dependent  on  the 
second  only,  in  which  event  the  writ  cannot  properly 
issue  until  the  second  is  perfected.  Thus,  in  a  suit  for 
partition  certain  charges  and  expenses  may  be  made  a 
lien  upon  the  several  allotments,  but,  as  the  action  t)f 
the  commissioners  is  not  final  until  their  report  i>=!  con- 
firmed, the  time  for  issuing  an  execution  for  the  charge 
imposed  upon  any  of  such  allotments  does  not  com- 
mence until  the  confirmation  of  such  report.^^^ 

If,  however,  a  judgment  is  rendered,  a  writ  of  execu- 
tion may  issue  before  its  formal  entry.*^*  An  execu- 
tion may  be  issued  in  advance  of  the  actual  entry  of  the 
judgment  in  two  contingencies,  namely,  the  judgment 
may  be  entered  in  its  regular  order,  but,  through  press 
of  business  or  from  some  other  cause,  not  immediately 
after  the  rendition  of  the  judgment,  or  for  some  reason 
the  judgment  entry  may  not  be  made  in  the  regular 
course  of  business.  In  the  first  of  these  contingen- 
cies, as  soon  as  the  clerk  proceeds  to  write  up  his  re- 

1T8  Seton's  Forms  of  Decrees,  Jutlgmonts,  and  Orders,  4th  ed., 
1561;  Stevens  v.  Mansou,  87  Me.  430;  Miller  v.  O'Bannon,  4  Lea, 
398;  Fontaine  v.  Hudson,  90  Mo.  02.  3  Am.  St.  Rop.  515. 

179  Hathaway  v.  Howell.  0  Tbomp.  &  C.  453;  4  Hun,  270. 

180  Re  Ausburu.  122  N.  C.  42. 

181  Graham  v.  Lynn,  4  B.  Mon.  17,  39  Am.  Dec.  493. 


§24  ISSUING  THE  ORIGINAL  EXECUTION.  78 

cords,  the  proceedings  appear  fair  upon  their  face,  and 
I)j  a  decided  weight  of  authority,  the  execution,  if  is- 
sued after  the  rendition  of  the  judgment,  cannot  be 
avoided  by  showing  that  the  judgment  had  not  been  in 
fact  entered  at  the  time  of  such  issuing/^^  In  the 
other  contingency,  it  may  be  necessary  to  obtain 
further  judicial  action,  as  by  a  motion  that  the  judg- 
ment be  directed  to  be  entered  nunc  pro  tunc  as  of  tlie 
(late  of  its  rendition.  This  entry  may  not  be  directed 
to  be  made  until  after  the  writ  has  been  fully  executed, 
and,  whenever  made,  the  question  must  naturally  arise 
as  to  what  is  the  effect  of  the  nunc  pro  tunc  entry. 
Does  it  validate  all  the  proceedings  and  make  them  ef- 
fectual to  the  same  extent  as  if  the  judgment  had  been 
entered  prior  to  the  occurrence  of  any  of  them?  This 
is  a  question  more  proper  for  detailed  consideration  in 
ireatises  considering  the  law  of  judgments.  The  gen- 
<'ral  rule  upon  the  subject  may  be  stated  thus:  when 
directing  entries  of  judgment  nunc  pro  tunc,  courts  will 
generally  impose  such  conditions  as  may  seem  neces- 
sary to  protect  the  interests  of  third  persons  who  have 
acted  in  good  faith  and  without  notice,  and  that, 
though  such  conditions  are  not  expressly  imposed,  they 
are  nevertheless  implied  by  law.  "If  one  not  a  party 
to  the  action  has,  when  without  notice  of  the  rendition 
of  the  judgment  or  of  facts  from  which  such  notice 
must  be  imputed  to  him,  advanced  or  paid  money  or 
property,  or.  in  otlier  words,  has  become  a  purchaser  or 
incumbrancer  in  good  faith  and  upon  a  valuable  con- 
sideration, then  the  subsequent  entry  of  such  judgment 
nunc  pro  tunc  will  not  be  allowed  to  prejudice  him. 
Otherwise  its  effect  against  him  is  the  same  as  if  it  had 

182  Lowenstein  v.  Caruth,  r)9  Ark.  58S;  Los  Anceles  Bank  v.  Ray- 
nor,  61  Cal.  145;  Woij:loy  v.  Matson,  126  111.  64,  8  Am.  St.  Rep.  333. 


78  ISSUING  THE  ORIGINAL  EXECUTION.  §  24 

been  entered  at  the  proper  time.*®^  The  authorities  in 
some  of  the  states  leave  the  question  we  are  here  dis- 
cussing in  doubt.  Thus,  in  Iowa,  there  are  decisions 
holding  executions  void  because  issued  before  the  entry 
of  the  judgment,  but,  from  the  opinion  of  the  court,  we 
are  inclined  to  think  that  these  decisions  were  founded 
on  the  assumption  that,  at  the  time  of  the  issue  of  the 
execution,  no  judgment  had  been  rendered,  or,  at  least, 
1  hat  there  was  no  competent  evidence  of  such  rendition, 
it  appealing  that,  while  a  judgment  had  been  ordered, 
it  was  of  such  a  character  that  it  could  not  be  drawn 
by  the  clerk,  but  must  first  be  drafted  by  counsel  and 
I>resented  to  the  judge  for  approval,  and  that  such  ap- 
l»roval  had  not  been  manifested  prior  to  the  issuing  of 
1  he  execution.'^*  In  this  state  the  clerk  failed  to  enter 
a  confession  of  judgment  when  authorized  to  do  so,  but 
issued  execution  thereon,  and  it  was  levied  on  real 
property.  A  suit  was  afterward  begun  to  enjoin  the 
sale  then^of  on  the  ground  that  the  execution  was 
void,  because  its  issue  preceded  the  formal  entry  of 
judgment.  In  the  meantime  judgment  had  been  en- 
tered nunc  pro  tunc  as  of  the  date  prior  to  the  issuing 
of  the  execution.  It  was  insisted,  nevertheless,  that 
1  his  entry  could  not  invalidate  the  writ.  The  court  de- 
<]ared  that  what  it  had  stated  in  the  previous  cases 
'Miad  no  reference,  however,  to  the  effect  that  should 
be  given  a  nunc  pro  tunc  entry,  and  it  is  not  to  be  re- 
garded as  conclusive  of  the  point  now  under  consldera- 

I  ion."  The  court  then,  referring  to  the  various  authori- 
ties  ujx.n  tlie  subject,  said:  "Following  this  almost  un- 
broken lin<'  of  (h'cisions,we  are  constrained  to  hidd  that 

1S3  Freeman  on  Jvidgraents,  §  66;  Dougbty  v.  >feek.  103  la.  16,  c,-; 
Am.  St.  Rep.  2S2;  Ninde  v.  Clark,  62  Mich.  124,  4  Am.  St.  xtop-  S2o. 

II  nd  note. 

184  Balm  V.  Muiin,  63  la.  642;  WinUn-  v.  Coulthard,  92  la.  312, 


§  24  ISSUING  THE  ORIGINAL  EXECUTION.  80» 

the  nunc  pro  tunc  eiitrj  so  opt^rates  as  to  save  the  exe- 
cution tliat  had  theretofore  been  issued."  ^^^  In  South 
Dakota,  it  has  also  been  assumed  that  an  execution  can- 
not issue  until  after  the  judjxment  is  entered  by  the 
clerk,  but  it  is  said  that  oral  evidence  is  incompetent, 
if  prop^'rly  objected  to,  to  contradict  the  recitals  in  the 
execution.***" 

In  Illinois  and  Colorado  it  appears  that  an  execution 
issued  upon  a  judgment  by  confession  in  advance  of  the 
actual  entry  of  such  judgment  is  unauthorized  and  void, 
although  every  act  had  been  done  and  every  fact  ex- 
isted, making  it  the  unquestionable  duty  of  the  clerk 
to  enter  the  judgment.***''  These  cases  seem  to  us  very 
questionable.  We  think  the  confession  having  been 
made  in  due  form,  and  everything  done  which  the  stat- 
ute exacted,  judgment  thereupon  was  pronounced  by 
the  law,  and  was  therefore  legally  in  existence,  though 
not  formally  recorded  by  the  clerk.  His  failure  to- 
enter  it  was  the  neglect  of  a  mere  ministerial  duty;  and 
where  the  failure  to  enter  a  judgment  arises  from  such 
neglect,  it  is  generally  regarded  as  sufficiently  in  ex- 
istence to  support  a  writ.****  Doubtless  there  is  gen- 
erally no  authority  for  the  issuing  of  an  execution  prior 
to  the  rendition  of  the  judgment.*®^  But  to  this  rule 
there  are  exceptions,  arising  in  cases  where  the  entry 
of  judgment  is  a  mere  ministerial  act,  as  where,  upon 

185  Doughty  V.  Meek,  105  la.  16,  67  Am.  St.  Hep.  282. 

186  Morris  v.  Hubbard,  10  S.  D.  259. 

i%7  Ling  V.  King.  91  111.  571:  Cummins  v.  Holmes.  109  111.  15; 
Humphreys  v.  Swain,  21  111.  App.  232;  Poppers  v.  Meager,  S3  111. 
App.  19;  Knights  v.  Martin,  155  111.  480;  Schuster  v.  Rader,  13  Colo. 
329. 

18S  Doughty  V.  Meek,  105  la.  16,  67  Am.  St.  Rep.  282. 

1*9  I'arker  v.  Frambes,  1  Pen.  156;  I^ofton  v.  Champion,  1  Pen. 
157;  Lee  v.  Steelman.  1  Pen.  319;  Rector  v.  Gale.  Hardin.  84.  In 
Missouri,  exccutidn  camiot  r<  .iziihuly  issue  until  the  motion  for  a. 
new  trial  has  been  denied.     Stephens  v.  Brown,  56  Mo.  23. 


81  ISSUING  THE  ORIGINAL  EXECUTION.  §  ■:4 

the  verdict  of  a  jury,  a  justice  of  tlie  peace  is  required 
by  law  to  enter  judgment  in  conformity  therewith.  In 
such  cases  the  rendition  ottlie  verdict  is  substantially 
the  rendition  of  the  judgment.*^"  By  the  common  law, 
as  soon  as  final  judgment  was  signed,  and  before  its 
entry  of  record,  execution  might  issue,  "provided  there 
was  no  writ  of  error  depending,  or  agreement  to  the 
contrary."  ^^^  So  in  New  Jersey,  "the  established  prac- 
tice is  that  the  plaintiff  may  issue  his  execution  imme- 
diately after  the  entr^^  of  judgment  nisi,  if  he  thinks 
proper  to  do  so,  at  the  risk,  however,  of  having  it  ren- 
dered a  nullity,  by  the  rule  to  show  cause  being  allowed 
absdhitely,  and  without  directing  the  entry  of  final 
judgment  for  the  protection  of  plaintiff."  ^'"^^  In  Cali- 
fornia, execution  may  issue  before  the  judgment-roll 
is  made  up.^^^  But  it  seems  that  the  common-law 
practice  never  prevailed  in  New  York;  and  that  the 
practice  adopted  in  its  stead  required  the  judgment- 
roll  to  be  filed  with  the  clerk  before  issuing  execu- 
tion.*»^ 

If,  by  statute,  an  execution  is  authorized  to  issue 
upon  some  obligation  without  the  entry  of  any  judg- 
ment tliereon,  such  issuing  cannot  be  authorized  until, 
under  such  obligation,  the  party  in  whose  favor  it  is  is 

IPO  Freeman  on  Judgments,  2(1  ed.,  §  .'>3  a;  Ivvnch  v.  Kelly,  41  Cal. 
2S2;  Folter  v.  Mulliner,  2  .Toliiis.  ISl;  Overall  v.  Pero,  7  Miob.  317: 
<\\iinos  V.  Betts,  2  Doug:.  (Mich.)  98. 

101  Tidd's  Pr.  994.  But  a  writ  tested  before  the  time  of  signing 
judgment  is  irregular.  Peacock  v.  Day,  3  Dowl.  P.  C.  291;  Engle- 
hart  V.  Dunbar,  2  Dowl.  P.  C.  202. 

192  Erie  R.  Co.  v.  Ackerson.  .33  N.  J.  L.  33. 

103  Sharp  v.  Luiiiley,  34  Cal.  G14. 

194  Barrie  v.  Dana,  20  Johns.  309;  Chicester  v.  Cande,  3  Cow.  39. 
15  Am.  Dec,  238;  Marvin  v.  Ilerrick,  5  Wend.  109;  Clute  v.  Clute, 
4  Deuio.  243;  Townshcnd  v.  Wesson,  4  Duer.  342;  Macomber  v. 
Mayor  of  N,  Y„  17  Abb.  Pr.  35;  Morris  v.  Patchin,  24  N.  Y.  398. 
82  Am.  Dec.  311. 
Vol.  I.-6 


§  -24  ISSUING  THE  ORIGINAL  EXECUTION.  82 

entitled  to  its  enforcement.  If  it  is  a  forthcoming  and 
deliverv  bond  or  a  claim  bond,'  and  the  obligee  is  en- 
titled to  execution  thereon  upon  the  contingency  speci- 
fied therein  or  by  law,  all  the  conditions  i^recedent  for 
the  issuing  of  execution  must  have  occurred,  and  if  is- 
sued in  advance  of  any  of  them,  the  writ  may  be 
quashed.*^'* 

The  docketing  of  judgments  is  required  for  the  pur- 
pose of  imparting  notice  to  third  persons  of  the  exist- 
ence of  the  judgment  lien.  It  is  in  no  wise  essential 
to  the  existence  of  the  judgment;*^  nor  is  it  in  general 
regarded  as  a  condition  precedent  to  the  issue  of  execu- 
tion^^'' in  any  case  where  the  same  is  issued  by  the 
court  wherein  judgment  Avas  rendered. 

193  Cntching  v.  Bowden.  89  Ala.  604;  Foust  t.  Greene,  90  Ala.  539. 

19G  Freeman  on  Judgments,  §  343. 

197  Hastings  v.  Cunningham.  39  Cal.  144;  Mollison  v.  Eaton,  16 
IMinn.  426,  10  Am.  Eep.  l.jO;  Rice  v.  Warren,  91  Ga.  759;  Drake  v. 
Harrison,  09  Wis.  92,  2  Am.  St.  Rep.  717;  Youngs  v.  Morrison,  1(> 
Paige.  32.5;  Corey  x.  Cornelius,  1  Barb.  Cli.  583;  Clark  v.  Dakiu, 
2  Barb.  Ch.  36.  Tlie  2S7th  section  of  the  New  York  Code  of  Pro- 
cedure provides  that  execution  may  issue  "to  the  sheriff  of  any 
county  where  judgment  is  docketed."  This  language  might,  with 
equal  force,  be  construed  as  a  limitation  or  an  extension  of  the  pre- 
vious authority  of  the  court  to  issue  execution.  It  may  be  argued, 
on  the  one  hand,  that  this  provision  was  designed  solely  to  ex- 
tend the  authority  of  local  courts,  and  to  enable  them  to  issue  A\Tits 
not  only  within  the  limits  of  their  own  jurisdiction,  but  also  lo 
other  counties  in  which  the  judgment  had  been  docketed,  and  this 
Me  think  the  more  reasonable  construction.  But  Mr.  Wait  con- 
strues the  provision  as  a  limitation,  for  he  says:  "An  execution  can- 
not regularly  issue  on  a  judgment  for  the  payment  of  money  be- 
fore such  judgment  has  been  docketed."  4  Wait's  Pr.  6.  The  cases 
cited  by  him  hardly  support  his  assertion.  In  the  case  of  Stephens 
v.  Browning,  1  Code  Rep.  123.  a  judgment  had  been  recovereii  in 
New  York  City,  and  execution  against  the  real  and  personal  prop- 
erty of  the  defendant  had  issued  to  Oswego  county,  before  any 
transcript  had  beon  docketed  in  the  last-named  county.  The  court 
lield  that  the  execution  was  authorized  as  to  the  personal  ami  un- 
authorized as  to  the  real  estate,  and  permitted  it  to  be  amended  so  a^* 
to  run  against  personalty  only.     In  Stoutenburgli  v.  Vandeuburgli, 


S3  ISSUING  THE  ORIGINAL  EXECUTION.  §  24 

Tho  period  at  which  execution  may  first  issue  has 
been  the  subject  of  such  varied  statutory  regulation  in 
the  different  states  tliat  it  cannot  be  fully  treated,  ex- 
cept by  furnishing  extracts  from  each  of  those  statutes. 
And  wherever  a  matter  is  so  much  under  the  control 
of  diverse  statutes,  we  think  it  better  to  turn  the  prae- 
t  itioners  of  each  state  over  to  the  consideration  of  their 
own  statutoi-v  compilations  than  to  attempt  the  recora- 
]n'lation  and  i-opublication  of  these  statutes  as  a  part 
«»f  this  treatise.  We  may  say,  however,  in  r.  gai  d  to  tlie 
general  policy  of  these  statutes,  that  many  of  them  au- 
thorize  execution  immediately  after  the  entry  of  judg- 
ment;*®® and  that  the  others,  which  postpone  the  right 
to  execution  to  a  later  date,  generally  have  provisions 
under  which,  in  cases  of  emergency,  immediate  execu- 
tion may  be  obtained  upon  api)lying  to  the  court  there- 
for.*»» 

7  How.  Pr.  220.  a  judgment  was  entered  in  Columbia  county  and 
n  transcript  sent  to  Greene  county.  The  execution  was  received 
in  Greene  county  one  day  before  the  transcript.  It  was  held  that  the 
ixocution  became  operative  in  the  hands  of  the  sheriff  from  the 
lime  the  judgment  was  actually  docketed  in  Greene  county.  But 
the  court  was  inclined  to  hold  that  in  all  cases  before  oxocutimi 
pan  be  issued  to  any  county,  judsmont  should  be  docketed.  In  De 
Airreda  v.  Mantel.  1  Abb.  Pr.  135,  as  in  the  case  just  cited,  the 
necessity  of  docketincr  the  judgment  to  authorize  execution  in  the 
county  where  it  was  entered  was  not  involved;  but  the  court  ex- 
pressed its  doubt  on  the  subject. 

198  De  Witt  V.  Smith,  3  How.  I'r.  2S0;  Carpenter  v.  Vanscoten,  20 
liKl.  52;  People  v.  Bay  Co.,  14  :Mich.  1G9;  Sharp  v.  Lumley,  34  Qal. 
(;i4. 

i:)9  Formerly  in  New  York  execution  could  not  issue  until  thirty 
days  after  entry  of  judgment.  Commercial  Bank  v.  Ives,  2  Hill, 
or..">;  Stone  v.  Green,  3  Hill,  4G9;  Van  Valkenburgh  v.  Harris.  3 
I>rnio,  162;  Bell  v.  Bell,  1  How.  Pr.  71.  In  Pennsylvania,  not  until 
Ton  days.  Eol)yshall  v.  Openheimer,  4  Wash.  C.  C.  388.  Not  until 
tour  days  in  Georgia.  Harris  v.  Wetmore,  5  Ga.  64.  Ten  days  in 
Kentucky.  Barbour  &  Carroll  Ky.  Stats.,  sec.  1653.  In  Florida, 
iniiiiediately  after  judgment  rendered.  Fla.  Ilev.  Stats.  1801,  .seo. 
11^7.     In  xVlal  aiiia.  as  soon  after  adjourwrneut  of  court  as  possible. 


§  25  ISSUING  THE  ORIGINAL  EXECUTION.  8i 

§  25.  The  Consequences  of  the  Premature  Issuing  of 
an  execution  are  next  to  be  considered,  when  the 
question  involved  is  not  that  of  issnins;  of  an  execution 
prior  to  the  entry  of  the  judgment  on  which  it  is  based, 
but  its  issuing  prior  to  the  time  authorized  by  law  or 
by  some  rule  or  order  of  court.  An  execution  issued 
in  Massachusetts,  in  violation  of  the  statute  directing^ 
that  "no  execution  shall  be  issued  within  twenty-four 
hours  after  the  entry  of  the  judgment,"  was  adjudged 
to  be  void,  and  the  title  derived  therefrom  was  disre- 
garded.^^^  In  the  same  state,  a  justice  of  the  peace  wha 
issued  execution  within  less  than  twenty-four  houra 
after  the  rendition  of  judgment  was  held  liable  therefor 
in  an  action  of  trespass.^^*  But  a  very  decided  prepon- 
derance of  the  authorities  is  against  the  first  decision 
above  referred  to,  and  in  favor  of  the  proposition  that 
the  premature  issuing  of  an  execution  is  an  irregularity 
merely.  The  execution  is  erroneous,  but.  like  an  errone- 
ous judgment,  it  must  be  respected,  and  may  be  en- 
forced, until  it  is  vacated  in  some  manner  prescribed  by 
law.'^^    No  one  but  the  defendant  can  complain  of  it; 

See.  2887  of  Code,  1886.  In  Iowa,  may  issue  on  Sunday,  when  plain- 
tiff would  otherwise  lose  his  debt.  See.  3956,  Iowa  Code.  1897.  In 
Massachusetts,  execution  cannot  be  taken  out  until  twenty-four 
hours  after  entry  of  judgment.  Penniman  v.  Cole,  8  Met.  501.  In 
Missouri,  the  execulion  onirlit  not  to  issue  before  the  determination 
of  the  motion  for  a  new  trial.  Stephens  v.  BroAvn,  56  Mo.  23.  In 
order  to  Ivcep  the  lien  of  an  attachment  alive  and  effectual,  it  has 
been  held  that  when  judsment  is  reversed  execution  ought  to  issue 
thereon  within  a  reasonable  time,  and  that  a  delay  of  more  than  a. 
year  is  unreasonable.     Speelman  v.  Chaffee,  5  Col.  247 

200  Penniman  v.  Cole,  8  Met.  496. 
'    201  Briggs  V.  Ward  well,  10  Mass.  356. 

202  Dawson  v.  Daniel,  2  Flip.  305;  Rosenfield  v.  Palmer.  5  Daly, 
.318;  Scribner  v.  Whitcher.  9  N.  II.  63,  23  Am.  Dec.  708;  Miller  v. 
O'Bannon,  4  Lea,  398;  Stanley  v.  Nelson.  4  Humph.  483;  Carpenter 
V.  :Mechanics'  Bank.  1  Lea.  202;  Wilkinson's  Appeal,  65  Pa.  St.  190; 
Sheppard  v.  Boberson  (Ga.),  32  S.  K.  (Um;  Faucett  v.  Harris.  190  Pa. 
St.  98;  De  Loach  v.  Bobbins,  102  Ala.  288,  48  Am.  St.  Bep.  46;    Wal- 


S5  ISSUING  THE  ORIGINAL  EXECUTION.  §  25 

and  even  be  canuot  do  so  in  any  ccllateral  proceed- 
jjj„.  :jo:j  uujer  an  ^ct  of  Congress  providing  that  ''until 
the  expiration  of  ten  days  cxecuticm  shall  not  issue," 
<-ertain  executions  were  coHaterally  objected  to,  on  the 
ground  that  tliey  were  issued  within  ten  days,  Imt  tho 
court  said:  "If  irregular,  the  court  from  which  they  is- 
sued ought  to  have  been  moved  to  set  them  aside;  they 
AV(  re  not  void,  because  the  marshal  could  have  j\istitied 
under  them,  and  if  voidable  the  proper  means  of  de- 
stroying their  efficacy  have  not  been  pursued."  *®* 
When  substantially  the  same  question  arose  in  Mis- 
souri, Judge  Ryland,  speaking  for  the  supreme  court, 
said:  "The  time  of  doing  the  deed  only  is  relied  on  as 
rendering  it  void.  I  am  satisfied  from  reason  and  au- 
thority both,  that  the  time  is  not  so  much  of  the  sub- 
stance of  the  power  and  act  as  to  render  the  act 
void."  ^**^  So  in  New  York,  against  the  objection  that 
an  execution  had,  contrary  to  the  statute,  Issued  within 
thirty  days  after  the  rendition  of  judgment,  the  court 
of  appeals  held  that  "until  set  aside,  although  Issued 
without  the  defendant's  consent,  the  process  was  valid, 
and  no  ouo  could  take  advantage  of  such  irregularity 
but  the  defendant  in  the  execution."  "^  Some  recent 
decisions  of  the  St.  Louis  court  of  appeals  of  Missouri 

drop  V.  Fri'odman,  90  Ala.  I.jT.  24  Am.  St.  Rop.  775;  Knoxville  City 
Mills  V.  Loviuger,  S3  Ga.  .5G3:  Wboeliiij:  P.  Co.  v.  T.evi.  48  La.  Ann. 
777;  Ma.son  etc.  Co.  v.  Killoch  M.  Co..  4."»  S.  C.  11;  House  v.  Robert- 
sou.  89  Tex.  r>81;  Rogers  v.  Cherrier,  75  Wis.  54;  Olmstead  v.  Brewer, 
01  Ala.  124;  Wilkinson's  Appeal.  G5  Pa.  St.  ISO;  Shimp  v.  Hay,  8  111. 
flO;  see,  also,  Clicsebro  v.  Barme,  105  Mass.  81. 

203  Stevrart  v.  Stocker,  13  Serg.  &  R.  199,  15  Am.  Dec.  589;  Low- 
ber  &  Wilmer's  Appeal.  8  Watts  &  S.  389,  42  Am.  Dec.  302;  Wilkiu- 
son's  Apiioal,  G5  Pa.  St.  190;  Lynch  v.  Kelly,  41  Cal.  232;  Allen  v. 
Portland  St:ig(^  Co..  8  Me.  200. 

^04  Blaine  v.  Ship  Charles  Carter,  4  Crunch,  333. 

203  Carson  v.  Walker.  16  Mo.  85. 

200  Bacon  v.  Cropsey,  7  N.  Y.  199. 


§  25  ISSUING  THE  ORIGINAL  EXECUTION.  86 

we  are  unable  to  reconcile  with  the  previous  decision 
of  the  supreme  court  of  that  state  upon  the  subject  al- 
ready referred  to.  A  statute  of  that  state  declares  that, 
before  anj^  execution  shall  be  delivered  by  a  justice  of 
the  peace,  he  shall  state  in  his  docket,  and  also  on  the 
back  of  the  writ,  an  account  of  the  debt,  damages,  and 
costs, and  the  execution, from  the  time  of  delivery  to  the 
the  constable,  shall  be  a  lieu  on  the  2:oods,  chattels,  and 
shares  in  stocks  of  the  defendant  found  within  the  lim- 
its within  wliicli  the  constable  or  other  officer  can  exe- 
cute his  process.  It  is  evident  by  this  statute  that  a  lien 
cannot  exist  under  the  writ  until  the  account  of  the 
debt,  damages,  and  costs  has  been  stated  in  the  docket 
and  on  the  back  of  the  execution,  becmise  the  express 
language  of  the  statute  makes  this  statement  a  condi- 
tion precedent  to  the  existence  of  the  lien.  The  court 
has.  however,  stated  in  general  terms  that  an  execution 
issued  without  this  statement  of  account  is  void,  citing 
certain  authorities  in  support  of  this  conclusion  having 
no  relevancy  to  it  whatsoever.^"''  Where  the  practice 
requires  the  filing  of  the  judgment-roll  to  precede  the 
issuing  of  execution,  an  execution  is  not  void  because 
issued  before  such  filing;  and,  where  the  issue  and  filing 
are  on  the  same  day,  the  court  will  not  make  any  in- 
quiry in  reference  to  fractions  of  the  day,  but  will,  as 
between  the  parties.permit  thewrit  to  stand  in  force.^^ 
But  an  execution  properly  issued  will  obtain  prece- 
dence over  another  issued  on  the  same  day,  if  the  judg- 
ment-roll authorizing  the  latter  is  not  filed  until  after 
the  former  is  issued.  Tn  this  case,  the  court  will  notice 
a  fraction  of  a  day.^*^^    An  execution  sent  to  the  sheriff, 

207  Huffman  v.  Sisk,  02  Mo.  App.  098;  Loth  v.  Faconesowich,  22 
Mo.  App.  G8. 

2ns. Tones  v.  rovter.  G  llow.  Pr.  280;  Clute  v.  Clnto,  4  Denio,  241, 
Clute  V.  Clnto.  ?,  Donio.  2C,?,:  Smnll  v.  T\tcCbesney,  3  Cow.  19. 

200  Marvin  v.  llonick,  5  Woud.  109. 


87  ISSUING  THE  OllUJlNAL  EXECUTION.  §  'JG 

and  roccivod  by  bim  previous  to  the  filing;-  of  the  record, 
is  not  prematurely  issued,  if  the  sheriff  be  directed  to 
ind()rs<»  it  as  rcfcivcd  of  a  subsoqucnt  day,  and  on  that 
day  the  record  be  signed  and  filed. '^*^ 

§  26.  Executions  Issued  Contrary  to  Agreement  b*^- 
tween  the  parties  are  subject  to  tlie  sanic  rules  as  other 
premature  executions.  In  North  Carolina,  the  parties, 
by  consent,  had  a  memorandum  made  upon  the  record, 
"no  fi.  fa.  to  issue  until  October,  or  until  ordered." 
The  plaint i IT  issued  execution  in  contravention  of  this 
agreement.  This  execution  was  afterward  collaterally 
questioned,  when  tlie  court  held  that  "it  was  not  void, 
but  was  a  sufficient  justification  to  the  sherift"  in  pro- 
ceedin«c  under  it  as  if  no  such  memorandum  had  been 
made."  ^^^  In  a  case  determined  in  the  supreme  court 
of  tlit^  T'nited  States,  it  appeared  that  a  memorandum 
had  been  endorsed  on  the  judgment  record,that  by  con- 
sent the  execution  was  stayed  until  a  day  <lesi<'nated, 
and  that,  notwithstanding  this  memorandum,  the  writ 
issued  before  such  date,  and  that  proceedings  had  been 
taken  under  it,  apparently  without  any  objection  from 
any  one,  and  certainly  without  any  motion  having  been 
made  to  quash  the  writ.  It  was  held  that  under  the  cir- 
cumstances, in  the  absence  of  any  evidence  to  the  con- 
trary, it  might  be  presumed  that  the  writ  had  issued 
with  the  consent  of  the  defendant,  but  that,  even  if  it 
were  assumed  that  the  execution  was  irregularly  is- 
sued, it  could  not  for  that  reason  be  held  absolutely 
void  and  incai)al)le  of  being  validated,  and,  finally,  that, 
as  the  defendant  had  not  taken  any  steps  to  quash  the 
writ  or  the  levy  made  thereunder,  the  writ  and  subse- 

210  W^iltors  V.  Sykes,  22  Wentl.  TiGG. 

211  Cody  V.  Quinu,  G  Ired.  193,  44  Am.  Dec.  75;  Slicltou  v.  Fels, 
rbill.  (N.  C.)  178. 


§  27  ISSUING  THE  OllIGIXAL  EXECUTION.  88 

quont  proceedings  must  be  treated  as  valid.^*^  There 
is  no  doubt,  however,  that  courts  will,  on  proper  appli- 
cation, enforce  all  a,i;Teenionts  made  by  the  parties  for 
the  stay  of  execution,  whether  entered  on  the  record  or 
not.  "I  have  known,  if  a  judgment  be  given  and  there 
is  an  agreement  between  the  parties  not  to  take  out 
execution  till  next  term,  and  tlicy  do  it  before,  that  the 
court  has  set  all  aside."  ^*^  In  New  York,  where  judg- 
ment had  been  entered  by  confession,  the  court  after- 
ward set  aside  the  execution,  being  convinced,  by  aflfl- 
davits  filed  on  behalf  of  the  defendant,  that  the  plain- 
tiff induced  the  confession  by  agreeing  to  stay  execu- 
tion for  three  years.^^*  But  an  agreement  procured 
by  misrepresentations,  or  upon  conditions  which  Avere 
not  complied  with,  may  be  disregarded  by  the  plaintiff, 
who  may  at  once  issue  execution.  The  court  will  not, 
in  such  a  case,  interfere  in  behalf  of  the  defendant.^*^ 

§  27.  Latest  Time  for  Issuing.— By  the  common  law, 
a  plaintiff  who  had  obtained  a  judgment  in  a  personal 
action  was  compelled  to  attempt  to  execute  it  within 
a  year  and  a  day.  If  he  failed  to  do  so,  the  right  to 
execution  upon  that  judgment  was  forever  gone.  The 
judgment  remained  a  mere  evidence  of  indebtedness, 
upon  which  an  action  could  be  brought.  In  such  action, 
it  w^as  incumbent  on  the  defendant  to  show  by  what 
means,  if  any,  the  judgment  had  been  satisfied.  The 
rule  was  otherwise  in  real  actions.  There  the  demand- 
ant after  a  year  might  take  out  scire  facias  to  revive 
his  judgment.    By  statute  of  Westminster  2, 13  Edw.  I., 

212  Beebe  v.  United  States,  161  U.  S.  104. 

213  Tw'isden.  J.,  in  Veal  v.  Warner,  1  Mod.  20;  Yeagley  v.  Norbeck, 
327  Pa.  St.  238. 

214  Merritt  v.  Baiter,  11  How.  Pr.  456. 

215  Holmes  v.  Delabourdine,  1  Browne,  132. 


«9  ISsUIXfi  THK  ORICINAL  KXKC'UTJON.  §  27 

c.  45,  scire  facias  was  given  to  the  plaintiff  to  revive  liis 
juflgiiient  in  a  personal  aetion.  But  aft(-r  this  statute, 
as  before,  the  time  within  which  an  rxecutiou  couhl  is- 
sue on  till'  original  judgment  was  limited  to  a  year  and 
a  day.  In  the  greater  portion  of  the  United  States  the 
<*ommon-law  rule  has  been  displaced  by  statutes.  Those 
statutes  have  generally  fixed  the  tiiiic  within  which 
the  original  execution  can  issue  at  n  iiiucli  lunger  period 
than  that  fixed  by  the  common  law.'"' 

The  requirement  of  the  law  by  Avhicli  jdaintiff.  after 
delaying  for  a  year  and  a  day  the  Issuing  of  his  original 
execution.  Is  compelled  to  sue  out  a  scire  facias  and  ob- 
tain a  judgment  thereon  before  he  can  have  execution, 
Is  intended  for  the  protection  of  the  defendant.  He 
need  not  claim  this  protection.  lie  may,  by  consent,  au- 
thorize the  entry  of  a  judgment  of  revivor,  without  put- 
ing  the  plaintiff  to  his  scire  facias;"*"  or  he  mav.  by 
agreement  with  the  plaintiff,  waive  his  right  to  object 
to  the  issuing  of  execution  after  a  year  and  a  day. 
There  is  no  reason  why  such  an  agreement  should  not 
be  enforced.  An  execution  issued  within  the  time 
agreed  ui)on  is  regular;  and  the  want  of  scire  facias  can- 
sis  In  Coanectieut  and  Louisiana  executdons  may  issue  at  any 
ijme  (luring  tlie  life  of  the  parties.  Denison  v.  Williams,  4  Conn. 
404;  Harper  v.  Tfriy.  Ifi  La.  Ann.  216.  In  Alabama,  within  ten 
years.  Perkins  v.  B.  I.  &  C.  Co.,  77  Ala.  403.  In  Iowa,  at  any  time 
before  the  jndiiniont  is  barred  by  the  statute  of  limitations.  Sec. 
.'{055  of  Code,  1S07.  In  Illinois,  within  seven  years.  Starr  v.  Cur- 
liss.  Ann.  111.  Stats.,  2d  ed.,  p.  2:«4,  par.  0.  Striblin?  v.  Prettyman. 
57  111.  371;  but  see  Chase  v.  Frost,  60  111.  143.  In  Florida,  within 
three  years.  Fla.  Rev.  Stats.,  ISOl,  sec.  1185.  In  Arkansas.  Indiana, 
and  ^Minnesota,  within  ten  years.  Leonard  v.  Eorghton,  120  lud.  ."36, 
16  Am.  St.  Uo\^.  347,  Hanly  v.  Caneal.  14  Ark.  .524:  Ploagh  v.  Reeves, 
:33  Iiui.  181;  Plou?:h  v.  "Williams.  33  Ind.  182;  Davidson  v.  Gaston,  16 
Minn.  202.  In  West  Virginia,  within  two  years.  Gardner  v.  Land- 
<'raft,  6  W.  Va.  36. 

^1-  ITarmer  v.  .Johnson,  14  Mecs.  &  W.  336:  3  Dowl.  &  L.  38;  9  .Tur. 
<>69;  14  L.  J.  Ex.  292. 


§  27a  ISSUING  THE  ORIGINAL  EXECUTION.  90 

not  be  urged  against  it  by  any  person  nor  for  any  pui- 
pose.^^* 

Independently  of  any  express  limitation  upon  tlie 
time  within  which  execution  may  be  issued,  the  qujes- 
tion  must  occasionally  be  presented,  whether  there  is 
not  an  implied  limitation  arising  from  the  operation 
against  the  judgment  of  the  statute  of  limitalions;  and 
this,  whether  the  right  to  execution  has  become  dor- 
mant by  the  failure  to  prosecute  scire  facijis  or  such 
other  proceedings  as  may  be  prescribed  by  Hk-  statute 
of  the  state  wherein  the  question  is  presented  for  con- 
rideration.  The  consideration  of  this  topic  will  be  re- 
served for  the  section  succeeding  this. 

§  27  a.  Executions  Issued  on  Motion  without  Scire 
Facias. — in  many  of  the  states  the  remedy  by  scire  fa- 
cias is  no  longer  employed;  but  after  the  lapse  of  a 
time  designated  in  the  statute,  an  execution  can  issue 
only  upon  order  of  the  court,  granted  on  motion,  on 
proof  that  the  judgment  remains  unsatisfied.  These 
statutes  are,  many  of  them,  limitations  upon  ihe  time 
within  which  execution  may  issue.  If  the  plaintiff  does 
not  bring  himself  within  their  provisions,  his  right  to 
execution  is  irrevocably  lost.  In  California,  by  section 
681  of  its  Code  of  Civil  Trocedure,  the  plaintiff  is  given 
an  absolut(^  right  to  execution  at  any  time  within  five 
years  after  the  entry  of  his  judgment,  and  by  section 
685  of  the  same  code,  in  all  cases  judgment  may  be  en- 
forced or  carried  into  execution  after  the  lapse  of  five 
years  from  date  of  its  entry,  by  leave  of  the  court  upon 
motion  or  by  judgment  for  that  purpose  founded 
upon  supplemental  pleadings,  except  that  proceedings 

2i«  Cooper  V.  Norton.  16  I..  .T.  Q.  B.  ?,CA;  IIowoll  v.  Stratton.  2 
Smith,  m:  Mor-nn  v.  r.nrcioss,  1  DowL,  N.  S.,  850;  Morris  v.  Jones.. 
8  Dowl.  &  It.  003;  2  Barn.  &  C.  242. 


91  ISSUING  THE  ORIGINAL  EXECUTION.  §  27  i 

under  this  secdoii  cannot  revive  a  judgment  for  tin* 
recovery  of  nion<'y  which  has  been  barred  by  the 
statute  of  limitations.  Under  this  section,  the  ques- 
tion arises  wliether  a  judgment  directing  the  sale 
of  property,  but  not  imposing  a  personal  liability 
on  any  one,  is  a  judgment  "other  than  for  the  re- 
covery of  money.'-  This  section,  in  our  opinion,  di- 
vides judgments  into  two  great  classes:  1.  Those  the 
object  or  result  of  which  is  the  recovery  of  money; 
and  2.  Those  the  object  or  result  of  which  Is  to  re- 
cover sometliing  other  than  money.  In  the  first  class, 
execution  cannot  issue  after  five  years.  The  object  of 
an  action  to  obtain  the  sale  of  property  is  to  compel 
the  payment  of  a  debt  or  charge.  The  plaintiff's  claim 
can  at  any  time  be  satisfied  by  the  payment  of  money. 
He  is  not  entitled  to  recover  possession  of  any  sp  cifi  • 
property  or  thing;  but  only  to  obtain  or  recover  money. 
It  is  true  that  in  seeking  compulsory  payment  he  may 
be  confined  to  certain  designated  property,  but  still 
the  thing  sought  and  granted  is  none  the  less  the  re- 
covery of  money,  and  nothing  but  money,  and  th  ' 
judgment  resulting  is  therefore  one  for  the  recovery  of 
money.  The  views  Ave  have  expressed  seem  in  har- 
mony with  those  avoAved  by  Professor  Pomeroy,  at 
section  H2  of  his  work  on  equity  jurisprudence.  In 
treating  of  equitable  remedies,  he  names  as  the  sev- 
enth, "remedies  of  pecuniary  compensation,  or  thise  in 
which  the  relief  consists  in  the  award  of  a  sum  of 
money";  and  describing  these  remedies  of  pecuniary 
compensation,  he  says:  "These  remedies,  whose  final 
object  is  the  recovery  of  money,  are  of  tlire  '  distinct 
species,  which  differ  considerably  in  tin  ir  external 
form  and  incidents,  but  agree  in  their  substance,  ii)  the 
intrinsic  nature  of  the  final  relief.''    He  then  mentions 


§  -7a  ISSUING  THE  ORIGINAL  EXECUTION.  92 

as  one  of  these  species  the  case  "in  which  the  relief  is 
not  a  general  pecuniary  judgment,  but  is  a  decree  of 
money  to  be  obtained  and  paid  out  of  some  particular 
fund  or  funds."    He  admits  that,  on  the  first  view,  a 
judgment  of  this  class   may  appear  to   be   something 
more  than  a  mere  money  judgment;  but  adds  that  "a 
closer  view  shows  that  the  real  remedy,  the  final  object 
of  the  iH'Oceeding,  is  the  pecuniary  recovery.    Among 
the  familiar  examples  of  this  species  is  the  suit  to  fore- 
close a   mortgage   of   laud,  common   throughout   the 
United  States,  hj  the  sale  of  the  mortgaged  premises." 
It  is  now  settled  in  this  state  that  an  order  of  sale,  or 
other  execution  for  the  enforcement  of  a  lien  on  real  or 
personal  property,  though  not  connected  with  any  per- 
sonal liability  on  the  part  of  the   defendant,  cannot 
issue  after  five  years  from  the  entry  of  the  judgment; 
that  if  the  court  should  inadvertently  or   erroneously 
direct  such  writ  to  issue,  fts  erder  and  all  proceedings 
taken  under  the  writ  should  be  vacated  on  motion,  and, 
if  such  order  is  not  vacated  by  the  court  entering  it,  it 
may  be  set  aside  upon  certiorari.^'**    If  pi^mitted  to 
stand  upon  the  records  of  the  court,  it  is  doubtless  void 
and  incapable  of  imparting  any  validity  to  proceedings 
taken  under  it. 

In  the  other  states  in  which  the  right  to  issue  exe- 
cution after  a  certain  time  is  granted  by  statute,  it 
generally  depends  not  upon  the  chaiacter  of  the  judg- 
ment, but  upon  the  fact  of  its  remaining  nnsatistied.^^** 

Tho  motion  or  other  proceeding  for  leave  to  issue 
execution  should  be  prc^sented  to  the  court  wherein  the 

219  Borland  v.  Hanson.  81  Cal.  202,  1.'  Am.  St.  Rop.  44;  .Taoks  r. 
.Tohnston.  86  Cal.  384.  21  Am.  St.  Kep,  50;  Cortez  v.  Superior  Court, 
St5  Cal.  274.  21  Am.  St.  Hep.  37. 

220  Keeves  v.  riough,  46  Ind.  350. 


yj  ISSUING  THE  ORIGINAL  EXECUTION.  §  27a. 

jiKlgracnt  was  entered.-^^  The  statutes  imply  that  the 
order  for  the  writ  is  not  a  matter  of  course,  but  should 
bo  preceded  by  some  inquiry  as  to  the  propriety  of  is- 
suing- the  writ.  It  is  obvious,  therefore,  that  the  appli- 
cation should  not  be  treated  as  an  ex  parte  proceed- 
ing, and  that  the  applicant  should  be  required  to  give 
notice  of  his  motion  to  the  parties  apparently  inter- 
ested in  resisting  it,  and  that  they  should  be  awarded  a 
hearing,  and  afforded  an  opportunity  to  establish  by 
competent  evidence  any  facts  tending  to  show  that  the 
judgment  ought  not  to  be  enforced.^--  The  motion 
should  be  presented  to  the  court  for  decision  within 
the  time  in  which  by  statute  the  court  is  entitled  to 
grant  the  relief  sought.  It  is  not  suflicient  that  notice 
be  given  within  that  time  of  an  intention  to  apply  for 
such  relief  at  a  later  period.^-"^ 

Though  at  the  rendition  of  a  judgment  the  time 
within  which  execution  may  issue  thereon  is  not  lim- 
ited, it  may  subsequently  be  limited  by  the  legislature, 
or  a  pre-existing  limitation  may  be  shortened.  Stat- 
utes of  this  character,  provided  they  do  not  deprive  the 
plaintiff  of  a  reasonable  time  within  which  to  enforce 
his  judgment,  relate  to  the  remedy,  and  hence  are  con- 
stitutional, though  they  somewhat  restrict  or  abridge 
it.^"* 

Whether  a  w^rit  issued  without  leave,  w^here  leave  for 
its  issuing  should  have  first  been  obtained  in  the  mode 
designated  in  these  statutes,  is  void  or  voidable  only, 
is  a  question  still  involved  in  doubt  and  conflicting  ju- 
dicial opinion.     On  the  one  hand,  it  is  insisted  that  as 

221  Thompson  v.  Tarken  83  Ind.  9G;  Couuor  v.  ^'off,  2  Ind.  App. 
364. 

222  rursel  V.  Deal.  16  Or.  29'). 

223  Peters  v.  Ya\vter,  10  Mont.  201. 

224  Leonard  v.  Boiigbtou.  120  Ind.  nOG.  10  Am.  St.  Rep.  347. 


^  27a  ISSUING  THE  ORIGINAL  EXECUTION.  94 

the  statute  declares  that  the  writ  shall  not  issue  unless 
it  is  shown  to  the  court  that  the  judgment  remains  un- 
satisfied, the  authorization  of  such  issuing  is  a  judicial 
act,  there  is  no  more  foundation  on  which  to  rest  the 
writ  than  if  no  original  judgment  had  been  entered;  ^^ 
on  the  other,  the  existence  of  the  original  judgment  is 
regarded  as  sufficient  to  support  the  writ,  and  the  ab- 
sence of  the  order  granting  leave  is  treated  as  a  mere 
irregularity  justifying  the  vacating  of  the  writ,  but  not 
destroying  or  limiting  its  force  while  it  remains  unva- 
cated.^'^  If  an  execution  issues  at  a  time  when  both 
tlie  time  within  which  execution  could  originally  issue 
and  within  which  the  judgment  could  be  revived  have 
elapsed,  it  is  obviously  void  because  there  can  then  be 
no  circumstance  in  which  it  could  be  directed  to  is- 
sue.'""^ 

Sometimes  there  is  an  apparent  conflict  between  dif- 
ferent  parts  of  a  state  statute  relating  to  this  subject, 
one  part  giving  the  right  to  issue  execution  without 
imposing  any  limit  of  time,  and  another  part  limiting 
the  time  within  which  an  action  could  be  brought  on 
a  judgment,  and  thereby  implying  that  after  such  time 
it  is  functus  officio.  In  :N>w  York,  it  is  said  that  the 
limitation  of  tlie  remedy  by  action  does  not  imply  any 
limitation  of  tlie  remedy  by  execution,  and  therefore 
that  an  execution  may  properly  issue  to  enforce  a  judg- 

2-.-,  Rollins  V.  :M(Tntire.  87  Mo.  400;  State  v.  McArtliur.  5  Kan. 
2S0;  Ilalsey  v.  Van  Vliot,  27  Kan.  474. 

2^B  Sandlin  v.  Anderson,  7G  Ala.  403;  Mariner  v.  Coon,  IG  Wis.  400; 
:Martin  v.  Prather,  82  Intl.  535;  Lawrence  v.  Gramblins,  13  S.  C. 
120;  Bank  of  Gonosee  v.  Spencer,  18  N.  Y.  154;  Wlnobrener  v.  John- 
son, 7  Abb.  rr.,  X.  S.,  205. 

^27  George  v.  Miildough,  G2  Mo.  549;  Lyon  v.  Russ,  84  N.  C.  .588; 
'J'rammell  v.  Anderson,  52  Ark.  176;  Dorland  v.  Hanson,  SI  Cal.  202. 
15  Am.  St.  Kep.  44;  Cortez  V.  San  Francisco  Super.  Ct.  SG  Cal.  274, 
21  Am.  St.  Hep.  37. 


Dj  ISSUING  Tin:  oUK.IXAL  EXECUTION.  §  JTa 

iiicnl  on  all  actions  wliicli  are  barrutl  by  the  statute  of 
liinitatimis.'-'^  This  ])ositiou  seems  logically  sound. 
Nevertheless,  we  believe  it  at  variance  witii  the  gen 
'•ral  current  of  aut  hority."'*  The  majority  of  the  cases 
ireat  the  statute  ol'  liiiiiial  ions  as  a  practical  extin- 
liuislinifiii  of  1  he  judgnicnl ;  and  in  one  case  it  has  b;'cn 
held  that  the  issuing  of  an  execution  after  the  statute 
<»f  limitations  had  become  operative  could  not  be  sus- 
tained, <vcn  by  showing  that  the  defendant  had  made 
a  new  i»romise  under  which  an  action  on  the  judgment 
could  be  successfully  prosecuted. ^■'•*^ 

A  writ  may  rightfully  issue  and  a  levy  be  made 
1  liereumler  before  the  judgment  is  within  the  operation 
of  the  statute  of  limitations,  and  the  question  may  then 
arise  whether  such  levy  can  be  made  productive  by  a 
sale  after  the  judgment  has,  by  lapse  of  time,  fallen 
within  the  statute.  AVhen  a  judgment  is  a  lien,  it  is 
generally  conceded  that  a  sale  made  after  the  expira- 
tion of  the  lien  is  dei)rived  of  its  benefit  irrespective  of 
the  time  when  the  writ  was  issued  or  the  levy  made. 
The  same  reasoning  upon  which  this  rule  is  based 
seems  e<iually  valid  when  applied  to  a  sale  under  exe- 
.  ution  made  after  the  judgment  wa?^  bair .d  by  the 
statute  though  the  writ  issued  before  that  time.  The 
only  decision,  however,  coming  Avithin  our  observation 
involving  this  question  affirms  that  "when  proceedings 

228Tviiic.ai.l  V.  rufhardson.  2.'.  Hun.  237:  0  Abb.  N.  C.  Sir,:  W.Uter- 
!uire  V.  Westovor,  14  N.  Y.  17:  Herder  v.  Collyer.  22  Abb.  N.  C.  461; 
.b.hnson  V.  Albany  etc.  Co.,  54  N.  Y.  41G;  Townsend  v.  Tolhurst,  57 

\\\m.  40. 

22D  .Jerome  v.  Williams,  13  Mich.  521;  People  v.  Wnyno  County. 
*.7  Mich.  287:  McDonald  v.  Dickson,  85  N.  C.  24S:  McCJrcw  v.  Ren- 
<(.ns,  3  Ivi'a,  4S5;  Peters  v.  Yawter,  10  Mont,  261;  Thomson  v.  Bever- 
i(1-e,  3  MacUey,  170;  Ludeman  v.  Uirth.  9G  Mich.  17,  35  Am.  St. 
Kop.  58S:  Merchants'  N.  P..  v.  Braithwaite,  7  N.  D.  35S,  GO  Am.  St. 
K.'p.  0.53. 

230  Caiiuuu  V.  Laman,  7  I^'a,  513. 


§  .:7b  ISSUING  THE  ORIGINAL  EXECUTION.  96: 

authorized  b}-  law  to  enforce  a  lien  are  instituted  be- 
fore the  right  to  execution  upon  a  judgment  is  barred^ 
thej  are  valid,  and  a  sale  in  pursuance  thereof  regu- 
lar," though  such  sale  is  not  made  until  the  judgment 
has  become  barred.^^*^ 

§  27  b.  Leave  of  the  Court,  When  Discretionary.— In 
some  of  the  states  the  right  to  execution  is  made  abso- 
lute for  a  designated  period,  after  which  the  statute  de- 
clares that  execution  on  the  classes  of  judgments  there- 
in named  may  be  issued  upon  leave  of  the  court.  These 
statutes  are  silent  respecting  the  grounds  upon  which 
such  leave  should  be  granted  or  refused.  This  omis- 
sion on  the  part  of  the  legislature  has  been  inade- 
quately supplied  by  the  decisions  of  the  courts  up  to 
this  time.  At  the  common  law  a  plaintiff  had  an  abso- 
lute right  to  revive  a  judgment  by  scire  facias  within 
a  designated  time,  but  after  that  time  the  right  was 
not  absolute,  and  leave  of  the  court  was  necessary,  and 
it  was  said  that  the  court  had  a  discretion  to  deny  leave 
or  riot.^^^  This  general  rule  has  been  thought  appli- 
cable to  statutes  making  the  right  to  execution  depend- 
ent upon  the  leave  of  the  court.  Thus,  in  New  York, 
when  leave  to  issue  a  writ  of  possession  was  sought,, 
the  court,  after  considering  the  statute,  said:  ''The 
conclusion  seems  to  be  clear  that  the  granting  of  an  ap- 
plication for  leave  to  issue  an  execution  or  a  writ  of 
possession  in  such  a  case  as  this  is  one  r(  sting  wholly 
in  the  discretion  of  the  court.  If  a  proper  case  is  made 
out.  the  court  has  power  to  grant  it,  and  doubtless^ 
would  do  so.  While  we  cannot  agree  with  the  opinon 
of  the  general  term,  that  th<^  ap]»li(ation  is  barred  by 
the  laps(^  of  twenty  years,  its  order  is  silent  as  to  the 

231  Luflemnn  v.  Iliitli.  'M',  Midi.  17.  3.'  Am.  St.  Rep.  5SS. 

232  Bank  of  New  York  v.  Eden,  17  Johns.  105. 


97  ISSUING  THE  ORIGINAL   EXICt  UTIOX.  § -JTb 

question  of  power,  and  we  must  hold  it  to  have  been 
discretionary,  and  therefore  not  reviewable  by  us,"  '"'^'* 
In  California  leave  was  sought  to  issue  an  execution 
upon  a  judjjfment  foreclosing  a  lien.  Leave  was  denied. 
In  sustaining  the  action  of  the  trial  court  the  appellate 
court  said:  "Aside  from  authority,  it  seems  to  us  mani- 
festly politic,  at  least  in  actions  where  title  to  real 
property  is  involved,  that  the  court  should  not  be 
bound  to  allow  the  enforcement  of  the  judgment,  after 
lapse  of  five  years;  otherwise  the  judgment  becomes  a 
perpetual  incumbrance  by  mere  neglect  of  the  owner 
thereof  to  execute  it.  We  think,  therefore,  that  the 
provision  of  said  section  685  that  'the  judgment  may  be 
enforced  by  leave  of  the  court'  is  permissive  as  regards 
the  power  given  to  the  court  in  actions  like  the  pres- 
ent, and  that  the  court  must  determine  in  the  exercise 
of  a  sound  discretion  whether  the  dormant  judgment 
shall  be  enforced."  ^'^^  While  these  decisions  estab- 
lish that  the  issuing  of  execution  in  the  class  of  cases 
referred  to  is  within  the  discretion  of  the  court,  they 
utterly  fail  to  disclose  the  limits  of  such  discretion  or 
the  grounds  which  should  control  its  exercise.  We  are 
unable  to  believe  that  the  discretion  is  an  arbitrary 
one,  dominated  by  the  caprice  of  the  judge  from  whom 
leave  is  sought,  or  that  his  action  is  wholly  beyond  the 
review  of  the  appellate  courts.  In  neither  of  the  cases 
cited  does  any  special  reason  appear  to  have  been  urged 
either  for  granting  or  refusing  the  leave  sought.  In 
both  it  was  clear  that  a  judgment  existed,  and  that  it 
had  not  been  satisfied,  and  in  neither  was  any  reason 
disclosed  for  not  having  sought  satisfaction  at  an  ear- 
lier date.    If  we  may  draw  any  inference  from  these  de- 

233  Van  Rensselaer  v.  Wri'j:lit.  121  X.  Y.  c^O. 

234  Wheeler  v.  Eldred,  121  Cal.  28,  GU  Am.  St.  Rep.  20. 

Vol..  1.-7 


§  es  ISSUING  THE  ORIGINAL  EXECUTION.  98 

cisions,  other  than  that  the  question  is  within  the  dis- 
cretion of  the  trial  court,  it  is  this:  that  whore  no  rea- 
son is  shown  for  not  having  taken  out  execution  dur- 
ing the  time  within  which  the  plaintiff  had  Hn  absolute 
right  thereto,  the  court  may,  without  any  abuse  of  its 
discretion,  refuse  the  leave  asked. 

§  28.  Computing  the  Time  within  which  an  Execution 
may  Issue. — The  subject  of  the  computation  of  time 
within  which  a  writ  of  execution  may  issue  may  be  con- 
sidered, first  with  reference  to  the  common-law  rule 
requiring  the  issuing  of  the  writ  within  a  year  and  a 
day  after  the  entry  of  the  judgment,  and,  second,  with 
respect  to  statutes  which  have,  in  the  United  States, 
supplanted  that  rule.  Prima  facie  the  time  should 
be  computed  by  commencing  with  and  including  the 
day  on  which  the  judgment  is  entered,  unless  there  is 
some  statute  giving  the  party  the  benefit  of  the  exclu- 
sion of  that  day,^^  but  if  for  some  reason  the  plaintiff 
is  not  entitled  to  execution  at  the  time  the  judgment  is 
entered,  the  computation  should  commence  with  thd 
day  on  which  he  first  becomes  so  entitled. ^•**'  After 
the  right  to  execution  has  existed  it  may  be  suspended 
by  stays  granted  by  the  court  in  which  it  is  entered,  or 
by  the  act  or  agreement  of  the  parties,  or  by  orders  or 
writs  issued  in  other  suits,  whereby  the  party  in  inter- 
est is  precluded  from  further  action,  and  then  the  ques- 
tion must  inevitably  arise  as  to  whether  the  time  when 
his  right  to  execution  has  been  thus  suspended  is  to 
be  included  within  the  computation  of  the  time  in 
which  he  is  entitled  to  the    writ.     There  is  no    doubt 

235Aultman  &  Co.  v.  Syme,  91  Hun,  G32;  Carvin  v.  Garvin,   34 

S.  C.  388. 

236McMann  v.  Superior  Court,  14  Cal.  lOG;  Kupfrr  v.   Frank,  30 
Hun,  74;  Aultman  v.  Syme,  87  Hun.  295. 


99  ISSUING  THE  ORIOINAL   EXECUTION.  §  23 

that,  at  the  common  law,  the  time  in  which  the  writ 
was  stayed  by  a  writ  of  error  or  aj;rccmeut  of  the  par- 
ties was  excluded  from  the  computation,-"^''  and  so  was 
the  time  during  which  the  failure  to  take  out  execution 
was  occasioned  by  the  act  or  fault  of  the  defendant.^^** 
In  the  United  States  the  authorities  are  divided  upon 
the  question  whether  the  time  in  which  execution  may 
issue  is  extended  either  by  a  stay  of  proceed inf>s,  or  by 
any  other  act  of  the  defendant.  In  North  Carolina,  the 
common-law  practice  prevails,  and  the  defendant  can- 
not complain  of  a  delay  occasioned  by  his  agreement. 
If  he  procures  a  stay,  the  execution  may  issue  within 
a  year  and  a  day  after  such  stay  expires.^"'^  The  same 
rule  applies  in  Kentucky  where  any  definite  stay  has 
been  agreed  upon,-"*"  or  when  any  judgment  or  decree 
is  suspended  in  its  operation  until  some  further  day 
after  its  entry.-'*^  The  rule  has  also  been  frequently 
applied  in  the  CTnited  States,  where  the  delay  was  occa- 
sioned by  an  injunction."'*^  In  truth,  we  believe  there 
is  no  dissent  in  the  United  States  from  the  proposition 
that  the  time  in  which  the  right  to  execution  is  sus- 
pended by  any  stay  thereof  to  which  the  defendant  as- 
sented, or  from  which  the  plaintiff  could  not  escape,  is 

237  Rock  Island  N.  B.  v.  Thompson,  173  111.  593,  G4  Am.  St.  Rep. 
137;  1  Bac.  Abr.,  tit.  Execution,  H;  Bellasis  v.  Hanford,  Cro.  Jac. 
:;04;  Booth  v.  Booth.  6  Mod.  2SS;  Cromwell  v.  Andrews,  Yel.  7; 
Layton  v.  Garnon,  5  Coke,  8S;  Watkins  v.  Haydon,  3  W.  Black.  762; 
Iliscocks  V.  Ki'mp.  3  Ad.  &  E.  G76. 

2  !s  Mitchol  V.  Cue,  2  Burr.  6G0;  Bosworth  v.  Phillips,  2  W.  Black. 
784;  Bland  v.  Darley,  3  Term  Rop.  530. 

250  Wood  V.  r.agley,  12  I  rod.  87. 

240  Nicholson  v.  Ilowsley,  Litt.  Sol.  Cas.  300;  Pollard  v.  Pollard, 
4  T.  B.  Mon.  3G0. 

2u  Long  V.  Morton,  2  A.  K.  Marsh.  40. 

2^2  Gibbes  v.  Mitchell,  2  Bay,  120;  United  States  v.  Ilanford.  19 
*  .Johns.  173;  Noland  v.  Seekritrht.  6  Munf.  18.");  Smith  v.  Charlton.  7 
<lratt.  447;  Eppes  v.  Randolph.  2  Call.  181!;  Hutsoupillcr  v.  Siovcr, 
12  Gratt.  582;  Peunock  v.  Hart,  8  Serg.  &  R.  376. 


§  2S  ISSUING  TUE  ORIGINAL  EXECUTION.  lOO 

not  to  be  included  within  the  computation  of  time  with- 
in which  the  writ  may  rightly  issue,  where  its  issuing 
is  still  controlled  by  the  common-law  rules;  ^^^  and 
that  those  cases  in  which  the  time  in  which  the  plain- 
tiff's writ  was  suspended  has  nevertheless  been  in- 
cluded in  the  computation  against  him  were  founded 
upon  statutory  provisions  Avhich,  whether  correctly  or 
not,  the  court  construed  as  prohibiting  it  from  exclud- 
ing the  time  of  such  suspension  from  the  computation. 
There  have  been  instances  in  which  the  plaintiff  has^ 
been  permitted  to  proceed  where  no  stay  in  fact  ex- 
isted, but  where  he  had  good  reason  for  supposing  it  to 
exist.  In  Texas  a  statute  x>urported  to  suspend  the 
right  to  execution,  but  it  was  finally  declared  to  be  un- 
constitutional and  void.  But  many  judgment  creditors 
had,  before  this  decision  was  reached,  respected  the 
law,  and  neglected  to  take  out  execution.  In  fact,  it 
was  impossible  to  obtain  execution,  because  no  clerk 
of  any  court  would  issue  it.  When  the  question  subsiv 
quently  arose  whether  the  time  during  which  this  law 
was  supposed  to  be  valid  should  be  computed  against 
the  plaintiff  in  determining  whether  his  judgment  had 
become  dormant,  the  supreme  court  said :  ''He  was  not 
bound  to  disregard  this  law  at  his  peril,  though  it  was 
afterward  held  to  be  unconstitutional,  and  it  is  in- 
sisted that  until  so  held  none  lost  their  rights  by  ob- 
serving it  as  a  rule  of  action.  It  is  within  the  knowl- 
edge of  all  that,  until  the  decision  in  the  case  of  Jones 
V.  McMahan,  parties  could  not  procure  executions — the 
clerks  would  not  issue  them;  and  we  presume  that  such 
a  construction  will  not  now  be  put  upon  the  law  as 

243  Tvock  Island  N.  B.  v.  Thompson,  ll'.i  111.  rjO.3.  04  Am.  St.  Rep. 
137;  Prrston  v,  Breckinridge,  8G  Ky.  G19;  TJnite^l  States  v.  Ilau- 
ford,  19  .Tohns.  173;  Dunlop  v.  Spocr,  3  Binn.  169;  Porter  v.  Vaughn, 
24  Vt.  211;  Hutsonpiiler's  Ad.  v.  Stover's  Ad.,  12  Gratt.  579. 


101  ISSUING  THE  ORIGINAL  EXECUIION.  §  23 

would  have  compelled  every  judgment  creditor  in  the 
state  to  resort  to  a  maudamus  against  the  clerk,  or  hjse 
liis  right  to  an  execution  on  his  judgment.''  ^^* 

The  courts  of  California  have  taken  the  extreme, 
and,  as  it  appears  to  us,  unreasonable,  view  that  the 
language  of  the  statute  in  that  state  designating  the 
time  within  which  execution  might  issue  was  so  strin- 
gent as  to  include  within  the  computation  all  the  time 
after  the  entry  of  the  judgment,  although  during  some 
part  thereof  the  plaintiff  was  prevented  from  exercis- 
ing his  right  without  any  fault  on  his  part.  The  stat- 
utes of  that  state  declare,  in  general  terms,  that  the 
party  in  whose  favor  a  judgment  is  given  may  at  any 
time  within  five  years  jifter  its  entry  have  a  writ  of  exe- 
cution issued  for  its  enforcement.  In  the  first  case 
calling  for  a  construction  of  this  statute,  it  ap])eared 
that  an  order  was  made  by  the  court  in  which  judg- 
ment was  entered  staying  all  executions  thereon  per- 
petually, with  leave  to  the  plaintiff  to  move  the  court 
to  vacate  the  order.  Some  five  years  later  notice  was 
given  of  a  motion  for  an  order  vacating  the  order  be- 
fore given  slaying  the  execution.  It  was  contende|d, 
irrespective  of  the  right  of  the  plaintiff  to  have  the 
order  staying  execution  vacated,  that  his  right  to  exe- 
cution had  in  the  meantime  expired  by  lapse  of  time, 
and  this  was  certainly  true  if  the  time  during  which 
his  writ  was  stayed  was  to  be  included  within  the  com- 
putation. The  court  was  of  opinion  that  there  was 
nothing  in  the  statute  or  the  practice  act  of  the  state 
"to  the  effect  that  the  time  during  whicli  the  plaintiff 
is  stayed  from  issuing  execution  shall  not  constitute  a 
part  of  the  five  years  to  which  he  is  limited  by  the  stat- 
s'** Phillips  V.  Tves5;er.  32  Tox.  Tr.O.  followed  in  Sessuius  v.  Botts, 
2i  Tex.  335;  Cravaus  v.  Wilsou,  3o  Tex.  o2. 


?  23  ISSUING  THE  ORIGINAL  EXECUTION.  102 

utc."  ^^'^  The  subsequent  decisions  of  the  state  have 
continued  in  harmony  with  this  early  decision.-*®  The 
rule  was  applied  when  the  issuing  of  an  execution  had 
been  prevented  by  an  injunction  restraining  the  judg- 
ment creditor,  and  it  was  held  that  an  order,  made 
after  such  injunction  had  been  dissolved,  but  more 
than  five  years  after  the  entry  of  the  judgment,  author- 
izing the  plaintiff  to  issue  execution  tlii'r(  on,  was  void, 
and  that  the  writ  and  other  proceedings  based  thereon 
were  invalid.^*'  The  courts  in  California  have  applied 
their  decision  to  cases  in  which  the  plaintiff  was  not 
entitled  to  an  execution  against  the  property  of  the 
judgment  until  some  time  after  the  entry  of  his  judg- 
ment. By  the  statutes  of  this  state,  if  a  debt  is  secured 
by  a  mortgage,  there  can  be  but  one  action  to  compel 
its  payment,  which  must  be  for  the  foreclosure  of  the 
mortgage.  The  judgment  must  first  direct  the  sale  of 
the  mortgaged  property  and  the  application  of  the  pro- 
ceeds of  the  sale  to  the  satisfaction  of  the  judgment, 
after  w^hich,  if  a  deficiency  still  remains,  the  plaintiff 
is  entitled  to  an  execution  therefor.  It  has,  neverthe- 
less, been  lield  that  the  time  for  the  issuing  of  this  exe- 
cution must  be  computed  from  the  date  of  the  entry  of 
the  judgment  and  not  from  the  date  when  the  plaintiff 
first  became  entitled  to  an  execution  for  the  deficiency 
arising  after  the  foreclosure  sale.^^*  Where,  however, 
a  judgment  is  payable  in  installments,  as  where  a  hus- 
band is  by  a  decree  of  divorce  directed  to  make  pay- 
ment monthly  to  his  wife  of  a  sum  awarded  her  as  ali- 

245  Solomon  v.  Maguiro,  29  Cal.  236. 

246  Dorland  v.  Hanson,  81  Cal.  202.  15  Am.  St.  Rop.  44;  Cortez  v. 
Superior  Court,  8B  Cal.  274,  21  Am.  St.  Rep.  37. 

247  Buell  V.  Buell,  92  Cal.  393. 

24.S  Bowers  v.  Crary,  30  Cal.  623;  Stout  v.  Macj-,  22  Cal.  G19;  con- 
tra, Cupfer  V.  Frank,  65  How.  Pr.  390. 


103  IS8U1XU  THE  ORKilNAL  KXKCUTiOX.  §  2S 

monv,  tlio  n\nht  to  execution  for  oacli  instullincnt  must 
be  regarded  as  eommeucing  only  when  it  falls  due,. and 
the  execution  may  issue  thereafter  though  within  more 
than  five  years  from  the  entiy  of  the  judgment.^'*" 

We  have  already  intimated  our  convietion  that  the 
construction  given  by  the  courts  of  California  to  the 
statutes  of  their  state  limiting  the  time  within  which 
execution  can  issue  is  unreasonable,  and  we  believe  it 
is  not  in  harmony  with  decisions  in  other  states  under 
statutes  of  similar  import.     When  the  question  arose 
in  ^Minnesota  under  a  statute  very  similar  to  that  of 
ralifornia,  the  court  said : ''It  would  be  unrea,sonable 
and  inconsist<^nt  for  the  lawto  present  to  a  party. in  one 
hand,  a  command  to  do  an  act  within  a  certain  time, 
under  the  penalty  of  losing  his  rights,  and  with  the 
other  hand  restrain  him  from  doing  the  act."     Hence 
the  court  held  that  the  time  during  which  a  judgment 
creditor  was  enjoined  by  the  court  from  enforcing  his 
judgment  by  execution  should  be  excluded  from  the 
computation  of  the  five  years  after  the  entry  of  judg- 
ment allowed  for    the    enforcement    thereof    by  this 
writ."^*^     In  New  York  we  understand   it  to   be   held 
that  ''the  provision  of  the  code  limiting  the  time  within 
which  execution  may  issue,  as  of  course  to  five  years, 
applies  only  to  a  case  where  the  right  to  issue  has  con- 
tinued during  that  time."  ^^^     Hence  if  a  judgment  be 
reversed  by  the  supreme  court,  and  subsequently  af- 
firmed by  the  court  of  appeals,  the  intermediate  time 
must  be  excluded  in  computing  the  time  within  which 
execution  may  issue.'"'^ 

249r,;iRtoii  V.  r.as1(Hi,  114  Ci\\.  r.42.  "i  Am.  St.  Twcp.  SG. 
^-'O  Wakotiolil  v.  Brown,  38  Minu.  oCl,  8  Am.  St.  Kop.  tlTl. 

251  T'lKkM-wodd  V.  (Jrcen.  10  Alb.  L.  .T.  340;  soo  L.vrlo  v.  Cincinnati 
Mfg.  Co.,  4  Ohio.  4."!);  Welsh  v.  Childs.  IT  Ohio  St.  ;;i'J. 

252  Underwood  v.  Green,  5G  N.  Y.  247. 


§  29  ISSUING  THE  ORIGINAL  EXECUTION.  104 

?  29.  Validity  of  Executions  on  Dormant  Judg- 
ments.— Tlio  consiMiiU'iiees  of  issuiug  an  execution  after 
a  year  and  a  day  are  tlie  same  as  the  consequences  of  a 
premature  issue.  The  writ  is  voidabh%  but  not  void. 
The  defendant  may  take  proceedings  to  have  it  set 
aside.  If  he  cliooses  to  interpose  no  objection  to  the 
irregularit}',  others  cannot  do  so  for  him.  Even  he 
cannot  attack  it  collaterally;  and  a  levy  and  sale  made 
under  it  are  sufficient  to  transfer  his  title.^^"  The 
decisions  made  under  the  Englisli  statute  requiring  the 
original  execution  to  issue  within  a  year  and  a  day 
seem  to  bo  equally  applicable  to  cases  where  execu- 
tions have  issued  at  too  late  a  day  under  American 
statutes.  Still  there  are  American  courts  which  have 
declared  executions  issued  in  the  absence  of  an  order 
of  court  void.'^*  These  decisions  are,  however,  in  the 
main  based  on  a  misconception  of  the  rules  generally 
applied  at  common  law  to  executions  issued  on  dor- 
mant judgments  in  the  absence  of  their  revivor  by  scire 

253  Ripley  V.  Ai-leclge,  94  N.  C.  4G7;  Brevard  v.  .Tones,  50  Ala.  221; 
Morgan  v.  Evans,  72  111.  GSG,  22  Am.  Rep.  154;  Tierce  v.  Alsop,  3 
Barb.  Ch.  184;  Mitchell  v.  Evans,  5  How.  (Miss.)  548,  37  Am.  Dec. 
169;  Brown  v.  Long,  1  Ired.  190,  30  Am.  Dec.  43;  Ingram  v.  Belk,  2 
Strob.  208,  47  Am.  Dec.  591;  Mosely  v.  Edwards,  2  Fla.  440;  Over- 
ton V.  Perkins.  Mart.  &  Y.  3(37;  Simmons  v.  Wood,  6  Yerg.  521; 
Jackson  v.  Bnrtlell.  8  .Tohns.  364;  Willard  v.  AVliipple,  40  Vt.  219; 
Beale  v.  Botetourt,  10  Gratt.  281;  Doe  v.  Harter,  1  Cart.  431;  Oxley 
V.  Mizle,  3  Mnrpli.  2.50;  Weaver  v.  Cryer,  1  Dev.  337;  Porti.s  v. 
Parker,  22  Tex.  707;  Andrews  v.  Richardson,  21  Tex.  287;  Hancock 
V.  Metz,  15  Tex.  205;  Sydnor  v.  Roberts,  13  Tex.  598,  G5  Am.  Dec. 
.S4;  Boggess  v.  Howard,  40  Tex.  153;  Vastine  v.  Fury,  2  Serg.  &  R. 
426;  Reynolds  v.  Corp,  3  Caines,  271;  I'atrick  v.  Johnson,  3  Lev. 
403;  Woodcock  v.  Bennett,  1  Cow.  711,  13  Am.  Dec.  568;  Ontario 
Bank  v.  Hallett,  8  Cow.  192;  Howard  v.  Pitt,  1  Salk.  2(>1;  Dawson  v. 
Shepherd,  4  Dev.  497;  Delisle  v.  Dewitt,  18  U.  C.  Q.  B.  155;  Harris 
V.  Cornell,  7  Chic.  L.  N.  345;  Richards  v.  Allen,  3  K.  D.  Smith,  399; 
Elliott  V.  Knott,  14  Md.  121;  State  v.  Morgan,  7  Ired.  387,  47  Am. 
Dec.  329;  Hill  v.  Newman,  67  Tex.  263. 

254  Rollins  V.  Mclntyrc,  87  Mo.  496. 


IOj  issuing  the  OKKilNAL  FXKrUTIOX.  §29 

facias.-"'""'  The  statutes  of  Wisfonsin  and  New  York 
provide  that,  after  a  period  of  time  therein  specified, 
execution  sliall  issue  only  upon  motion,  and  by  leave  of 
the  court.  In  both  states,  executions  issued  without 
leave  of  the  court  have  been  sustained.-'*'^     The  reason- 

255  See  §  28  a. 

250  Selsby  v.  Kedlon,  19  Wis.  17;  Jonos  v.  Davi.s.  22  Wis.  421,  and 
24  Wis.  229.  The  following  is  the  full  opinion  of  the  supreme  court 
of  WLsconsiu  on  this  subji'ct,  given  in  Mariner  v.  Coon,  10  Wis. 
408:  "The  question  presented  hy  this  case  is.  whether  an  execution 
issued  upon  a  dormant  judgment,  without  leave  of  court,  is  void, 
or  only  voidable.  If  void,  no  sale  can  be  made  under  it.  and  the 
purchaser  acquires  no  title.  But  if  voidable,  the  sale  may  be  valid, 
notwithstanding  the  omission  to  obtain  leave.  We  are  of  opinion 
that  such  an  execution  is  merely  voidable,  and  therefore  that  no 
advantage  can  be  taken  of  the  irregularity,  except  in  a  direct  pro- 
ceeding to  set  it  aside. 

"The  rule  at  common  law  is  well  known.  If  the  plaintiff  failed 
to  take  out  execution  witliiu  a  year  and  a  day,  extended,  in  many 
of  the  states,  by  statute,  to  two  years  from  the  time  the  judgment 
became  hnal,  it  could  not  be  regularly  issued  thereafter  without  re- 
viving the  judgment  bj'  scire  facias.  The  rule  was  founded  upon 
a.  presumption  that  the  judgment  had  been  satisfipd,  which  drove 
the  plaintiff  to  a  new  proceeding  to  show  that  it  had  not;  and  yet 
It  was  invariably  held  that  an  execution  taken  out  after  that  time, 
and  without  siire  facias  or  judgment  of  revivor,  was  not  null,  but 
simply  irregular.  The  defendant  might,  if  he  desired,  interpose 
and  set  it  aside  upon  motion;  but  if  he  neglected  to  do  so,  it  was 
■considered  an  implied  admission  that  the  judgment  was  still  in  full 
force.  He  might  waive  the  irregularity,  and  thus  avoid  the  expense 
of  a  scire  facias.  See  Irwin's  Lessee  v.  Dundas,  4  How.  79;  and 
Doe  V.  Ilarter,  2  Cart.  252,  and  the  cases  cited. 

"But  the  code  (sections  192  and  193  of  the  original  act,  now  sec- 
tions 1  and  2  of  chapter  134,  Ilevised  Statutist  prescrilies  a  different 
practice,  and  it  is  upon  tliis  that  the  counsel  for  the  defendants 
chiefly  relies.  When  tlie  execution  in  controversy  was  issued,  the 
period  was  fixed  at  two  years  from  the  entry  of  judgment.  It  is 
now  enlarged  to  five.  (Laws  ISGl,  chap.  140.)  After  that  period 
lias  elapsed,  it  is  provided  that  'an  execution  can  be  issued  only  by 
the  leave  of  the  court,  upon  motion,'  etc.  This  language  is  said  t  > 
take  away  all  power,  except  it  be  acquired  in  the  manner  prescribed, 
and  to  render  every  process  issued  in  contravention  of  it  void  for 
want  of  jurisdiction.  Were  we  to  supiiose  tlie  legislature  to  be 
speaking  with  reference  to    the  question  of    power,  then    there  is 


§  29  ISSUING  THE  ORIGINAL  EXECUTION.  ]0G 

ing  Oil  which  all  these  decisions,  whether  made  under 
English  or  American  statutes,  rests,  is  this:  the  judg- 
ment, notwithstanding  the  lapse  of  the  year  and  a  day, 
or  other  time  designated,  is,  unless  actually  satisfied, 

nothing  in  their  hinjruage  inconsistent  with  the  position  of  counsel, 
and  we  might  adopt  his  views.  But  we  are  not  at  liberty  to  act 
upon  this  supposition.  Upon  looking  to  the  previous  state  of  the 
law,  and  to  other  provisions  of  the  act,  we  see,  very  clearly,  that  it 
was  a  matter  of  practice  witli  which  the  legislature  were  dealing,  a 
question  as  to  the  form  of  proceeding  which  should  thenceforth  be- 
pursued,  and  not  one  which  necessarily  affected  the  jurisdiction  in 
case  the  new  practice  was  not  complied  with.  By  section  331  of 
the  original  act  (section  1,  chapter  IGO,  Revised  Statutes),  the  writ 
of  scire  facias  is  virtually  abolished.  The  remedies  heretofore  ob- 
tainable in  that  form  may  be  obtained  by  civil  action  under  the 
provisions  of  the  code.  But  by  the  particular  provision  of  section 
2,  chapter  134,  above  referred  to,  the  remedy  by  motion  to  revive 
a  judgment  which  has  become  dormant  by  lapse  of  time  is  substi- 
tuted. Hence  the  jjeculiar  significance  of  the  word  'only,'  upon 
which  the  counsel  insists  so  strongly  to  show  a  want  of  jurisdiction. 
The  execution  shall  be  issued  only  upon  motion;  otherwise  the 
plaintiff  might  resort  to  the  remedy  by  civil  action.  It  appears, 
therefdre,  that  the  consequences  of  a  departure  from  the  practice- 
prescribed  by  statute  are  the  same  as  they  were  at  common  law. 
It  is  a  simi)le  irregularity,  which  the  execution  debtor  may  waive, 
and  which  it  seems  he  did  do  in  this  case."  The  view  here  tal<en 
by  the  Wisconsin  court  is  supported  by  the  following  opinion  of  the 
New  York  court  of  appeals:  "There  was  always  a  time  after  which 
a  party  who  had  recovered  a  judgment  was  not  at  liberty  to  sue 
out  execution  without  an  application  to  the  court.  Formerly,  the 
time  was  a  year  and  a  day;  and  the  form  of  obtaining  an  award  of 
execution,  when  one  had  not  been  issjued  in  time,  was  by  scire  facias 
quare  executionem  non.  Afterward,  it  was  extended  by  the  Re- 
vised Statutes  to  two  years.  2  R.  S.  36.3,  sec.  1.  By  the  code  ir 
was  further  extended,  as  we  have  seen,  to  five  years,  and  the  modc^- 
of  obtaining  leave  was  an  application  to  the  court  on  motion. 
Under  the  former  practice  it  was  well  settled  that  the  execution,  if 
issued  too  late,  was  not  \oid.  Woodcock  v.  Ucnnet,  1  Cow.  711,  1.3. 
Am.  Dec.  568.  It  was  liable  to  be  set  aside  on  motion,  but  such 
motion,  like  all  others,  must  be  made  promptly;  and  if  it  appeared 
that  the  defendant  had  consented  to  the  execution  being  issued,  or 
if  there  were  any  circumstances  which  in  fairness  and  equity  pn^ 
eluded  him  from  availing  himself  of  the  irregularity,  the  motion 
would  not  i)revail.  Morris  v.  Jones,  2  Barn.  &  C.  232.  There  is  no- 
reason  why  the  same  practice  should  not  obtain  under  the  code."" 


107  ISSUING  THE  ORIGINAL  EXECUTION.  §  20 

still  in  force.     From  the  lapse  of  time,  the  presuin])tion 
may  be  induloed  that  a  sa(isfacti6u  has  taken  place, 
or  that  some  reason  exists  for  the  iion-issuanee  of  exe- 
cution.    To  give  the  defendant  an  opportunity  of  show- 
ing- cause  against  the  execution,   the  plaintilf   is  re- 
quired to  bring  him  before  the  court  by  scire  facias  or 
by  motion,  and    thus    give    him  an  occasion    to  show 
whether  the  judgment  has  been  satisfied.     But  as  the 
power  to  issue  execution  still  exists,  its  issuance  with- 
out the  scire  facias  or  motion  is  merely  the  erroneous 
exercise  of  a  conceded  power,  and  must,  like  all  other 
errors,  be  corrected  by  some  appropriate  proceeding; 
and  if  not  so  corrected,  must  be  respected  as  fully  as 
though  free  from  error.^^''     Statutes  providing  a  time 
after  which  no  execution  may  issue  interpose  an  in- 
superable obstacle  to  any  further  proceeding  for  the 
enforcement  of  the  judgments  subject  thereto.  If,  after 
the  expiration  of   the   time  within  which  a  writ   may 
issue,  one  is  in  fact  issued,  the  case  pre  scnted  does  not 
involve  an  irregularity  in  the  exercise  of  a  conceded 
power,  but    an    absence    of    such  power.     If  it  were 
within  the  power  of  the  court  to  give  leave  to  issue  an 
execution,  and  one  were  issued  without  such  leave,  and 
the  defi'udant  i)ermitted  it  to  be  enforced  without  ob- 
jection, he  might  properly  be  regarded  as  consenting  to 
its    issuing    and    enforcement    without    any    previous 
order  of  the  court,  but  in  those  cases  in  wiiich  th  ri^  is 

Bank  of  Goncsce  v.  Spencor,  IS  N.  Y.  I.")-!;  followed  in  WiuebreiuT  v. 
Johuson,  7  Abb.  Pr.,  N.  S.,  205;  Union  Bank  of  Troy  v.  Sixrgeant,  35 
IIow.  Pr.  87,  53  Barb.  422. 

257  Leonard  v.  Brewer,  G  Ala.  300;  De  Loach  v.  Pvobbins,  102  Ala. 
288,  48  Am.  St.  Rep.  4G;  Gardner  v.  Mobile  etc.  Go..  102  Ala.  GC5. 
48  Am.  St.  Jl<^\  84;  Veaj>;er  v.  Wrifrlit,  112  Ind.  2:',0;  Iveon.ard  v. 
Bouirbton.  120  Ind.  536,  IG  Am.  St.  Kep-  :!1T;  Gillespie  v.  Swiizer, 
43  Neb.  772;  tJereeke  v.  CiHnpl)ell,  24  Neb.  30G;  Eddy  v.  Cold  well,  23 
Or.  163,  37  Am.  St.  Rep.  G72. 


§  29  ISSUING  THE  ORIGINAL  EXECUTION.  108 

no  further  authority  on  the  part  of  the  court  to  issue 
the  writ,  it  must  be  regarded  as  absolutely  void, 
whether  the  court  has  undertaken  to  authorize  the  is- 
suing or  not.-"-"*  The  statute  of  limitations  may  have 
interposed  a  bar  to  the  judgment,  and  have  destroyed 
its  vitality.  If,  in  such  a  case,  execution  should  issue 
without  any  order  of  court,  we  think,  with  Mr.  Justice 
Breese,  of  the  supreme  court  of  Illinois,  that  "it  w^ould 
be  absurd  to  give  a  fieri  facias  more  vitality  than  the 
judgment  on  which  it  issued.''  '^'^ 

It  necessarily  follows  from  wliat  we  have  already 
stated  that  a  writ  irregularly  issued  without  a  revivor, 
but,  where  the  right  to  the  writ  still  existed,  had 
proper  application  been  made  therefor,  is  voidable  but 
not  void;  that  an  ofificer  engaged  in  obeying  its  man- 
dates is  protected  in  so  doing,'**'*  and  furthermore,  that 
he  cannot  urge  such  irregularity  as  an  excuse  for  any 
nonperformance  of  duty  on  his  part.^^^  L'rom  the  gen- 
eral rule  that  none  but  the  defendant  in  the  writ  can 
object  to  any  mere  irregularity  in  it^^  issuing,"''^  we 
should  conclude  that  third  persons  whose  rights  are 
incidentally  affected  cannot  object  to  the  writ  because 
issued  upon  a  dormant  judgment  without  leave  of  the 
court  and  without  a  proper  revivor,  where  it  is  appar- 
ent that  such  leave  must  have  been  granted  or  such 

25S  White  V.  Clark,  8  Cal.  513;  Kerus  v.  Graves,  2G  Cal.  150;  Bates 
V.  .Jiinies,  3  Duer.  45;  Giveus  v.  Campbell,  20  Iowa,  79;  Dorlaud  v. 
Smith,  93  Cal.  120;  .Tacks  v.  .Johnston.  86  Cal.  384,  21  Am.  St.  Rep. 
60;  Cortez  v.  Superior  Court,  86  Cal.  274,  21  Am.  St.  Hep.  37. 

259  Scammon  v.  Swartwout,  35  111.  344;  but  see  §  27  a;  Coward  v. 
Chastain,  99  N.  C.  443,  6  Am.  St.  Rep.  535;  Merchants'  N.  B.  v. 
Braithwalte,  7  N.  D.  358,  66  Am.  St.  Rep.  653. 

260  Hoskins  v.  Helm,  4  Litt.  309.  14  Am.  Dec.  1.^3;  Dawson  v. 
Shepherd,  4  Dav.  L.  497;  State  v.  Morgan,  7  Ired.  387,  47  Am.  Dec. 
329;  CJoshorn  v.  Alexander,  2  Bond  158. 

261  Cleveland  v.  Title,  3  Tex.  Civ.  App.  101. 

262  Mitchell  V.  Ringle,  151  Ind.  16,  68  Am.  St.  Rep.  212. 


109  ISSUING  THE  OIlIGINAL  EXECUTION.  §  30 

revivQF  have  resulted  had  apidicatiDn  been  made  th^re- 
for.  It  was,  indeed,  held  in  an  early  American  case, 
where  sundry  creditors  claimed  moneys  in  the  hands  of 
an  officer  realized  from  the  property  of  the  defendant 
in  the  action,  that  one  of  them  might  object  that  the 
execution  under  which  another  claimed  had  been 
irreiiularly  issued  after  a  year  and  a  day  from  the  entry 
of  the  judgment  and  without  any  revivor  thereof.^*'' 
This  decision  was  clearly  erroneous.^*** 

§  30.  Validity  of  Executions  on  Dormant  Judg- 
ments, as  between  the  Parties.— The  authorities  cited 
in  the  preceding  section  show  that  the  purchaser  under 
an  execution  based  upon  a  dormant  judgment  will  be 
protected.  It  remains  to  us  to  consider  the  effect  of 
such  execution  between  the  parties.  In  the  case  of 
Blanchenay  v.  lUirt,  in  the  court  of  queen's  bench,  the 
action  was  for  false  inii)risonm(  nt.  The  defendant 
justified  the  imprisonment  under  a  ca.  sa.,  issued  in  a 
suit  of  liurt  V.  Blanchenay;  and  the  replication  showed 
the  ca.  sa.  to  have  been  issued  after  a  year  and  a  day, 
without  any  revivor  by  scire  facias  or  otherwise.  The 
defendant  was  .held  to  be  protect<'d  by  his  writ.^^ 

283  Azt-aiati  v.  Fitzsinunoiis,  3  Wash.  C.  C.  134. 

264  Stewart  v.  Rtocker,  13  Serg.  <fc  K.  199.  l.>  Am.  Dec.  ."SO:  Loav- 
ber  iV:  Wiliner's  Ai)iieal.  S  \Yntts  &  S.  3S7.  42  Am.  Dec.  302. 

-'fi5  4  Q.  B.  707;  3  Gale  &  D.  613;  7  Jur.  575;  12  L.  J.  Q.  B.  2lil. 
In  this  case,  Lord  Denman,  C.  J.,  delivered  the  judgment  of  the 
court.  After  having  shortly  stated  the  pU^idings.  and  iu  particular 
the  objection  i-ai.sed  by  the  replication,  that  the  ca.  sa.  Avas  abso- 
lutely void,  having  issued  on  a  judgment  more  than  a  year  old  witli- 
out  a  sci.  fa.,  his  lordship  said:  "The  plaintiff  argues  that  it  is  ab- 
solutely void  for  this  fault,  relying  on  the  languasre  of  tills  court 
in  Mortimer  v.  Piggott,  2  Duwl.  P.  C.  U15,  in  which  it  was  so  de- 
cided. That  case,  however.did  not  require  the  doctrine  now  called 
in  question;  and  is  actually  reported  in  4  Ad.  &  E.  3(33.  note  d,  with- 
out its  being  laid  down.  We  are  now  recjuired  to  reconsider  it, 
and  are  satislied  that  it  is  in  that  respect  erroneous.     The    defect 


§  30  ISSUING  THE  ORIGINAL  EXECUTION.  110 

The  only  redress  which  the  defendant  has,  wh^n  exe- 
cution has  improperly  issued  on  a  dormant  judgment, 
is  by  motion  to  quash  such  execution.  The  defendant, 
if  he  does  not  make  such  motion  in  a  reasonable  time, 
by  his  delay  assents  to  the  irregularity.  "The  plaintiff 
is  put  to  a  scire  facias,  that  the  defendant  may  have  an 
opportunity  of  showing  that  the  debt  is  paid,  and,  as  it 
is  intended  for  his  benefit,  he  may  dispense  with  the 
writ,  either  by  express  agreement,  or  by  conduct  which 
amounts  to  a  waiver,  and  this,  in  fact,  is  frequently 
done  when  the  defendant  is  aware  that  the  debt  is  not 
paid  or  otherwise  satisfied.  When  an  irr(^gularity  has 
occurred,  it  is  the  duty  of  the  opposite  party  to  take 
advantage  of  the  defect  at  the  earliest  opportunity; 
otherwise,  in  consequence  of  his  own  laches,  he  will  be 
decreed  to  have  waived  every  advantage  arising  from 
it.  It  would  be  unjust  that  the  defendant  should  lie 
by,  with  a  knowledge  of  an  error,  and  by  this  means 
delay  his  adversary,  and  expose  him  to  unnecessary 
trouble  and  expense.  Courts  are  desirous,  or  should 
be,  of  enforcing  fair  dealing,  and  preventing  trick  and 
chicanery,  which  are  the  disgrace  of  the  law.  Hence 
the  rule  is,  that  the  party  must  seize  the  earliest  oppor- 
tunity of  suggesting  the  error,  otherwise  it  is  consid- 
ered as  waived."  '*'**  While  we  believe  it  to  follow, 
from  the  lat(^st  and  best  considered  cases,  that  an  exe- 
cution issued  after  a  year  and  a  day  is,  until  set  aside, 

amounts  to  an  irregularity,  of  which  the  opposite  party  misht  take 
advantage  by  writ  of  error;  or,  on  application  to  the  court,  the 
writ  of  ca.  sa.  might  be  set  aside;  but  it  is  not  a  mere  nullity." 
See,  also,  Reynolds  v.  Corp.  3  Caines,  271;  INIartin  v.  Kidge,  Barnes, 
206-  Woodcock  v.  Bennet,  1  Cow.  737,  13  Am.  Dec.  5G8;'  Jackson  v. 
De  Lanoy,  13  .Tolins.  550.  7  Am.  Dec.  403;  Doe  v.  Dutton,  2  Cart. 
312,  .52  Am.  Dec.  510;  Boggoss  v.  Hownrd.  AO  Tex.  153. 

zfi'e  Bailey  v.  Wagoner,  17    Serg.  &  R.  327;  Catlin  v.  Merchants' 
Bank,  36  Vt.  572. 


Ill  ISSUING  THE  ORIGINAL  EXECUTION.  §  3i 

valid  between  the  parties  to  tlie  writ,  yet  tli(  re  .are  not 
wanting  several  Anieriean  decisions  maintaining  tliat 
such  writ  is  so  far  a  nullity  that  the  plaintiff  who  sued 
it  out  can  neidici-  justify  under  it  nor  acquire  title 
through  it.-"'  It  is  certain,  however,  that  money  paid 
by  a  defendant  in  satisfaction  of  the  writ  must  be  re- 
garded either  as  voluntarily  paid  or  as  a  waiver  of  the 
irregularity  in  its  issuing,  and  hence  that  he  cannot 
maintain  an  action  against  the  plaintiff  to  recover  such 
payment.'"^** 

§  31.  Of  the  Right  to  Issue  Several  Writs  at  the  Same 
Time. — By  the  common  law,  the  various  remedies  to  en- 
force the  collection  of  judgments  were  regarded  as 
cumulative.  The  mere  fact  that  a  ca.  sa.  had  issued 
was  no  bar  to  a  fi.  fa.,  nor  was  the  issuing  of  the  lalt<  r 
any  bar  to  the  issuing  of  the  former.  The  plaintiff 
took  out  as  many  writs  of  different  kinds  as  he  thought 
best,  he  being  ans^werable  for  any  abuse  he  might  make 
of  his  process.-**^  ''A  fieri  facias  and  a  capias  ad  satis- 
faciendum may  issue,  at  the  same  time,  against  the 
goods  and  person  of  a  defendant.  So  a  party,  having 
sued  out  one  writ  of  execution,  may,  before  it  is  exe- 
cuted, abandon  that  writ,  and  sue  out  another  of  a 
different  sort;  or  he  may  have  several  writs  of  the  same 
sort  running  at  the  same  time,  in  order  to  take  the 
defendant,  or  his  goods,  in  diffc  rent  counties."'  -'"    The 

207  Waite  V.  Dolby,  8  Humph.  408;  Iloskins  v.  Helm,  4  Litt.  309, 
14  Am.  Deo.  133;  Weaver  v.  Ciyer,  1  Dev.  338. 

268  Gerecke  v.  Campbell,  24  Neb.  300. 

269  Trimrose  v.  Gibson,  2  Dowi.  &  R.  193,  16  Eng.  Com.  L.  78; 
Poutlus  V.  Nesbit.  40  Pa.  St.  309:  Commonwealth  v.  Lel;ir.  13  Pa. 
St.  22;  Davies  v.  Scott,  2  Miles,  52;  Allison  v.  Rheam,  3  Serg.  &  R. 
142,  8  Am.  Dec.  044;  McNair  v.  Ragland,  2  Dev.  Eq.  42.  22  Am. 
Dec.  728. 

27oTidd's  Pr.  99.';  ^fcNair  v.  Rairlnnd.  2  Dev.  Eq.  42.  22  Am.  Dec. 
T2S;  Hammond  v.  Mather,  2  Cow.  450;  Civ.  Code  of  Ala.,  18S0,  sec. 
2S8S, 


S  31  ISSUING  THE  ORIGINAL  EXECUTION.  lir 

right  of  the  plaintiff  to  have  several  writs  of  execution 
in  existence  at  the  same  time  is  dependent  upon  their 
necessity  to  enforce  his  judgment,  or,  more  accurately 
speaking,  the  right  cannot  be  affirmed  when  the  use  or 
existence  of  two  or  more  writs  is  clearly  unnecessary. 
He  will  not  be  permitted  to  harass  tlu^  defendants^ 
with  nec.'dless  writs  nor  to  divide  the  judgment  into 
parts  and  issue  a  writ  for  each.  If  a  judgment  is  pay- 
able in  installments,  execution  may  issue  for  each  as  it 
becomes  due,  or,  if  several  installments  are  due  and 
unpaid  at  the  same  time,  all  may  be  included  in  one 
writ.-''*  If  a  judgment  is  for  dama'j,es  and  costs,  and 
the  writ  issues  for  damages  only  before  the  costs  are 
taxed,  the  jjlaintiff  therebj^  Avaives  his  right  to  them.^'^^ 
If  he  directs  an  execution  or  a  levy  to  be  for  a  sum  less 
than  the  judgment,  he  is  not  entith^d,  at  a  later  date,, 
to  another  execution  for  the  balance  remaining  un- 
paid.-''^ 

There  is  ordinarily  no  necessity  for  the  plaintiff  to 
have  more  than  one  writ  of  the  same  tenor  or  character 
in  the  hands  of  the  same  officer,  for  it  is  manifest  that 
one  writ  must  be  as  efficient  as  many.  Hence,  it  is 
irregular  to  issue  two  or  more  writs  of  the  same  char- 
acter to  the  same  county  or  officer,  and  one  of  such 
writs  must,  if  a  motion  is  made  to  that  effect,  be 
quashed;  '^^  but,  even  where  the  statute  expressly  pro- 
hibits the  issuing  of  two  executions  at  the  same  time, 
it  is  probable  that  a  writ  issued  in  violation  of  the  stat- 

2T1  Piatt  V.  Piatt.  9  Oh.  ?,7. 

2"2  Davis  V.  Foru-uson.  148  Mass.  HO.?. 

27.'.  People  V.  Onniidni?o  C.  P..  3  Wend.  .331. 

274  Heedson  v.  Dantrerfield.  2  I>a.  Ann.  63,  20  Am.  Dec.  297; 
"Waters  v.  Caton.  1  liar.  &  ^Ic-II.  407;  Mc-Oehe  v.  Handley.  5  How. 
(Miss.)  625;  Ledyard  v.  Bnekle,  .5  Hill.  .^)71;  Wright  v.  Young,  6  Or. 
87;  Adams  v.  Small  wood,  8  .Jones,  258. 


113  ISSUING  THE  ORIGINAL  EXECUTION.  §  .'ila 

ute  is  irregular  merely  and  not  voia.-''*  If  there  is 
authority  for  the  issuing  of  a  writ  to  a  county  other 
than  that  in  which  the  judgment  was  recovered,  the 
remedies  to  issue  the  writ  to  the  difTerent  counties  are 
concurrent,  and  hence  a  writ  to  each  of  the  counties 
may  properly  issue  or  be  in  existence  at  the  same 
time.*'* 

§  31  a.    Loss  of  Right  to  Issue  because  of  Levy  or 
Other  Proceedings  Under  a  Writ  Already  Issued.— The 
riglit  of  the  plaintiff  to  have  two  or  more  writs  in  force 
at  the  same  time  does  not  involve  his  right  to  have  two 
or  more  satisfactions  of  the  same  judgment.     Hence, 
when  writs  are  issued  of  different  characters,  he  will 
not  be  allowed  to  enforce  all  of  them  at  once.^'^'^     If 
one  execution  is   levied   on   the   defendant's  property, 
and  under  another  his  person  is  seized,  both  cannot 
stand.     In  Pennsylvania,  the  plaintiff,  under  such  cir- 
cumstances, is  allowed  to  elect   which   he  will   aban- 
don.''^®     If,  under  the  English  practice,  a  fieri  facias  is 
levied  on  any  property,  though  entirely  insufficient  to 
satisfy  the  execution,  the  ca.  sa.  cannot  be  served  until 
after  the  fi.  fa.  is  returned.^'^     "Taking  the  defendant 
in  execution,  like  a  levy  upon  sufKcient  goods,  operates 
as  a  suspension  of  the  judgment   for  the  time  being. 
But  if  there  be  two  or  more  defendants,  the  taking  of 

276  iNierritt  v.  Grover,  57  la.  493. 

276  Pond  V.  Griffin,  1  Ala.  678;  Hicks  v.  Ellis,  6o  Mo.  17G;  Vege- 
Inhn  V.  Smith,  9.5  N.  C.  21^4:  Elliott  v.  Elmore,  IG  Oh.  27. 

2T7:yniler  V.  rarnell.  G  Taunt.  370;  2  Marsh.  78:  1  Eng.  Com.  L. 
G."8;  IIodRklnson  v.  Walley,  2  Tyrw.  174;  Cutler  v.  Colver.  3  Cow. 
30;  MfGehe  v.  Ilandley,  5  How.  (Miss.)  G29:  :Miller  v.  Miller.  25  Me. 
116;  "Windrum  v.  Tarker,  2  Leigh.  361;  Vandever  v.  Cannon,  2 
Houst.  Del.  172. 

2-8  Young  V.  Taylor.  2  Binn.  218;  Grant  v.  Potts,  2  Miles,  164. 

279  Hodgkinson  v.  Walley,  2  Tyrw.  174;  2  Cromp.  &  J.  8G;  1  Dowl. 
r.  C.  208. 

Vol.  I.-8 


S  3Ia  ISSUINC  THE  ORIGINAL  EXECUTION.  114 

one  of  them  iu  execution  does  not  suspend  the  plain- 
tiff's right  to  take  the  otliers." -"*"  Whenever  the 
judgment  is  suspended,  the  right  to  sue  out  execution 
must  also  be  suspended.  This  suspension  is  not,  we 
think,  so  absolute  as  to  entirely  destroy  the  power  to 
issue  execution.  A  fl.  fa.  issued  while  the  defendant 
is  in  custody  under  a  ca.  sa.,  though  erroneous,  is  not 
void.^**  The  taking  out  of  an  elegit  authorized  the 
seizing  of  a  moiety  of  the  defendant's  lands,  to  be  held 
until  the  profits  of  such  moiety  should  pay  the  debt. 
Tlie  law  presumed  that  this  payment  would  in  time  be 

250  Freeman  on  Judgments,  sec.  477,  citing  Fassett  v.  Talmage, 
1.5  Abb.  Pr.  205;  Bauli  of  Beloit  v.  Beale,  7  Bosw.  611;  Penn  v.  Rem- 
sen,  24  How.  Pr.  503.  See,  also,  Sharpe  v.  Specljenagle,  3  Serg.  & 
K.  46.j;  Bowrell  v.  Zigler,  19  Ohio,  3G6;  Rockhlll  v.  Hanna,  15  How. 
196;  Rogers  v.  Marshall,  4  Leigli,  432. 

251  Tayloe  v.  Thomson,  5  Pet.  3G9;  .Teanes  v.  Wilkins,  1  Ves.  Sr. 
195.    In  the  case  last  cited,  Lord  Chancellor  Hardwicke  said:  "To 
avoid  the  sale  and  title  of  the  defendant,  it  must  be  proved  that  the 
li.  fa.  was  void,  and  conveyed  no  authority  to  the  sheriff,  for  it 
might  be  irregular;  and  yet,  if  sufficient  to  indemnify  the  sheriff  so 
ihat  he  might  justify  iu  an  action  of  trespass,  he  might  convey  a 
good  title,  notwithstanding  the  writ  might  be  afterward  set  aside. 
It  is  said  that,  by  law,  during  the  existence  of  the  capias  and   the 
person  in  custody  a  fi.  fa.  ought  not  to  be  taken  out,  and  certainly 
it  ought  not;  although,  if  the  defendant  dies,  the  plaintiff  may  have 
a  new  execution,  as  upon  the  statute  21  Jac.  I.;  yet  while  that  con- 
tinues, resort  cannot  bo  had  to  any  other  execution;  and  the  court 
without  putting  the  party  to  his  audita  querela,  would  (as  I  appre- 
hend) set  it  aside  on  motion.    But  yet  that  fl.  fa.  was  not  void,  and 
the  sheriff  might  justify  taking  this  leasehold  by  that  writ;     and 
so  may  the  purchaser  under  the  sheriff,  who  gains  a  title;  other- 
wise it  would  be  very  hard,  if  it  should  be  at  the  peril  of  purchaser 
under  a  fi.  fa.,  whether  the  proceedings  were  regular  or  not;  and 
the  law  is  the  same,  although  the  fi.  fa.  issued  in  a  different  county 
from  that  wherein  the  body  was  taken  into  custody."     But    these 
views  have  been  repudiated  in  the  case  of  Kennedy  v.  Duncklee.  1 
Gray,  70,  where  it  is  lield  that  a  fi.  fa.,  issued  while  defendant  is 
in  custody,  is  in  legal  effect  issued  on  a  satisfied  judgment,  and  that 
no  title  can  be  divested  thereby,  whether  the  purchaser  has  notice 
or  not.     This  last  case  is  but  a  reaffirmance  of  the  doctrines  of  the 
prior  case  of  King  v.  Goodwin,  IG  Mass.  G3. 


115  ISSUING  THE  ORIGINAL  EXKCUTION.  §  32 

accomplisliod,  and  therefore  rej'arded  the  extending'  of 
any  lands  under  an  elegit,  however  trivial  their  value, 
as  a  satisfaction  of  the  judgment,  and  therefore  as  a 
bar  to  the  riglit  to  take  out  any  farther  execution.  It 
was,  at  an  early  day,  souk  times  contended  that  the 
mere  suing  out  of  an  elegit  precluded  the  plaintiff  from 
afterward  having  any  other  writ.  But  it  was  after- 
ward well  settled  that  when,  "under  this  writ,  execu- 
tion can  only  be  had  of  goods,  because  there  are  no 
lands,  and  such  goods  are  insufficient  to  satisfy  the 
debt  (nihil)  being  returned  as  to  the  lands,  a  ca.  sa.  or 
other  writ  may  then  be  had  after  the  elegit,  for  such 
elegit  is,  in  this  case,  no  more  in  effect  than  a  fieri 
facias."  "*- 

§  32.    Stay    of.  Execution  Other  Than  by  Appellate 

Proceedings. — During  the  time  within  which  phiintiff 
is  otherwise  entitled  to  execution  his  right  thereto  may 
be  suspended  or  destroyed  by  what  is  commonly  known 
as  a  stay  of  execution,  granted  by  the  court  in  which 
the  judgment  was  rendered  or  by  some  other  court  of 
superior  authority,  or  arising  without  any  formal  order 
of  any  court  as  a  result  of  proceedings  authorized  by 
statute.  These  stays  of  execution  may  be  regarded  as 
of  three  classes,  first,  those  which  are  ordered  by  the 
court  in  which  the  judgment  was  rendered,  but  not  as 
the  result  of  any  appellate  proceedings,  and  which  pro- 
ceed upon  the  ground  that,  for  some  cause,  the  execu- 
tion of  the  judgment  ought  to  be  postponed  to  some 
subsequent  date,  or,  perhaps,  ought  not  to  take  place 
at  all;  second,  those  which  are  a  consequence  of,  or  at- 

282  Bingham  on  Judgments  and  Executions,  17G;  Foster  v.  .Tack- 
son.  Hob.  OS;  Crawley  v.  Lidgeat,  Cro.  .Tac.  338;  Liuu-nstor  v. 
Fielder,  2  Ixl.  Kaym.  1451;  Kuowles  v.  Talmur,  Cro.  Eliz.  100;  Bea- 
tou  V.  Peck,  1  Strau-e,  22G. 


§  32  ISSUING  THE  ORIGINAL  EXECUTION.  IIG 

tend,  appellate  proceedings;  and,  third,  those  which 
result  from  statutes  grantino;  the  defendant  a  further 
time  in  which  to  satisf}-  the  judgment  upon  his  giving 
certain  security  therefor.  Each  court  has  such  gen- 
eral control  of  its  process  as  enables  it  to  act  for  the 
prevention  of  all  abuse  thereof.^'^^  Hence  it  may,  to 
prevent  the  annoyance  which  might  be  occasioned  by 
the  attempted  execution  of  a  void  judgment,  either 
stay  or  arrest  the  process;  ^**^  and  may,  where  it  is 
clear  that  the  judgment  ought  not  to  be  further  en- 
forced, order  a  perpetual  stay  of  execution.^^"^  If  it 
appears  that  proceedings  have  been  instituted  which 
may  result  in  the  annulment  of  the  judgment  or  in 
granting  the  defendant  a  release  therefrom,  its  further 
execution  may  be  suspended  until  the  result  of  such 
proceedings  can  be  known.  If  proceedings  in  bank- 
ruptcy or  insolvency  have  been  commenced  which  may 
result  in  the  release  of  the  defendant,  it  is  proper  to 
stay  execution  for  a  reasonable  time  to  permit  him  to  so 
far  prosecute  such  proceedings  that  his  release  can 
either  be  obtained  or  denied.  If  an  action  has  been 
brought  upon  a  judgment  from  which  a  writ  of  error 
has  been  prosecuted,  and  a  second  judgment  has  been 
recovered,  execution  thereon  should  be  stayed  until 
the  first  is  either  reversed  or  afifirmed;  otherwise,  the 

283  Eobinson  v.  Yon,  8  Fla.  350;  Sawin  v.  Mt.  Vernon  Bank,  2  R. 
I.  382;  Robinson  v.  Chesseldiue,  4  Seam.  332;  Granger  v.  Craig,  85^ 
N.  Y.  620. 

284  Sanchez  v.  Carriaga,  31  Cal.  170;  Ketchum  v.  Crippen,  37  Cal. 
223;  Murdoclv  v.  De  Vries,  37  Cal.  527;  Logan  v.  Hillegass,  16  Cal. 
201;  Kramer  v.  Holster,  55  Miss.  243;  Re  Kreiss.  96  Cal.  617. 

2*^5  Kceler  v.  King,  1  Barb.  3J)0;  Rutlanii  v.  Pippin.  7  Ala.  469; 
Lansing  v.  Orcott,  16  Johns.  4;  Welsh  v.  Tittswortli,  22  Hoav.  Tr. 
475;  Baker  v.  Taylor,  1  Cow.  165;  Palmer  v.  Hutchins,  1  Cow.  42; 
Davis  V.  Tiffany,  1  Hill,  643;  Harrison  v.  Soles.  6  Pa.  St.  303;  Marsh 
V.  Haywood,  6  Ilnmph.  210;  Smith  v.  Page,  15  Jolins.  395;  Monroe  v. 
Upt uu,  50  N.  Y.  593;  Cornell  v,  Dakin,  3a  N.  Y.  253. 


117  ISSUING  THE  ORIGINAL  EXECUTION.  §  32 

party  prosecuting  the  writ  of  error  may,  though  suc- 
cessful, be  deprived  of  all  benefit  thereof.'^^  A  per- 
petual stay  of  execution  may  be  granted  by  the  court 
in  which  the  judgment  was  rendered,  when  such  judg- 
ment was  void  when  entered,  or  wh;  n.  from  some  cause 
occurring  after  its  entry,  it  is  clear  that  the  further 
prosecution  thereof  ought  not  to  be  allowed.  The 
most  familiar  instance,  other  than  that  by  the  satisfac- 
tion of  the  judgment,  of  a  matter  occurring  after  its 
entry  and  requiring  a  perpetual  stay  of  execution,  is 
the  release  of  the  defendant  and  his  property  there- 
from by  a  discharge  granted,  him  under  the  bank- 
ruptcy or  insolvency  laws."**'^ 

When  an  appellate  court  has  affirmed  a  judgment 
and  remitted  the  case  to  the  subordinate  court,  the 
latter  has  no  right  to  stay  execution."**  This  rule 
ought  not  to  prevent  a  temporary  stay  of  such  execu- 
tion upon  grounds  which  do  not  question  the  correct- 
ness of  the  judgment  thus  affirm;  d,  as  where  it  is  urged 
that  the  defendant  has  a  judgment  against  the  plain- 
tiff to  the  benefit  of  which  he  is  entitled  as  a  setoff. 
Such  setoff  may  be  allowed  him  without  in  any  respect 
questioning  the  propriety  of  the  judgment  of  the  appel- 
late court,  and  a  stay  of  execution  may  properly  be 
granted  until  the  claim  of  setoff  can  be  investigated 
and  determined.'**^ 

The  power  of  courts  to  temporarily  stay  the  issuing 
of  execution  is  exercised  in  an  almost  infinite  variety 
of  circumstances,  in  order  that  the  ends  of  justice  may 

2S6Taswell  v.  Fitoiio,  4  Burr,  2454;  BenwoU  v.  Black,  3  T.  R.  643. 

2«7  Parks  V.  Goodwin,  1  Mich.  3o;  B:inj?s  v.  Strong.  1  Don.  619; 
Graham  v.  Pierson,  6  Hill,  24Tb;  Boynton  v.  Boll,  121  U.  S.  457. 

2>*^  Marysville  v.  Buchanan,  3  Cal.  212;  Dibrell  v.  Eastland,  3 
Yerg.  507. 

2*9  Blackburn  v.  Reilly,  48  N.  J.  L.  82. 


§  32  ISSUING  THE  ORIGINAL  EXECUTION.  11& 

be  accompHsliod.  In  many  oases  this  power  operates 
almost  as  a  substitute  for  proceedings  in  equity,  and 
enables  the  defendant  to  prevent  any  inequitable  use 
of  the  judgment  or  writ.''****  Like  most  otlier  discre- 
tionary powers,  it  is  liable  to  abuse.  It  is  the  general 
practice  of  the  losing  party  to  ask  and  for  the  court  to 
grant  a  stay  of  execution  for  some  designated  period 
after  the  entry  of  judgment,  for  no  other  reason  than 
that  he  is  not  yet  ready  to  comply  with  the  judgment^ 
or  perhaps  in  view  of  proceedings  by  appeal  or  for  a 
new  trial.  These  stays  generally  result  in  a  delay,  and 
sometimes  in  the  defeat  of  justice;  and  the  courts 
ought  to  be  very  cautious  in  granting  them,  except  in 
cases  where  the  ultimate  satisfaction  of  the  judgment 
by  the  defendant  is  assured.  The  power,  however,  to 
grant  such  stays  of  execution  is  everywhere  conceded^ 
and  it  could  not  be  limited  by  the  enactment  of  any 
unvarying  rule  without  encountering  evils  of  greater 
magnitude  than  those  sought  to  be  suppressed.  The 
exercise  of  this  power  will  sometimes  be  reviewed  by 
the  appellate  courts,^^^  but  never  "unless  capriciously 
exercised  or  abused."  ^^^  As  the  statutes  in  most  of 
the  states  purport  to  give  the  plaintiff  a  right  to  execu- 
tion for  a  definite  period  of  time  after  the  entry  of  judg- 
ment in  his  favor,  it  seems  unreasonable  to  maintain 
that  any  court  has  a  right  to  restrict  this  right  or  to 
interfere  with  its  exercise,  even  for  a  temporary  period, 
excei)t  for  some  well-defined  reason,  and  therefore  that 
the  many  orders  made  granting  stays  of  execution 
without  disclosing  any  other  ground  therefor  than  the 

280  Barnes  v.  Camack,  1  Barb.  390;  Steere  v.  Stafford,  12  R.  I. 
131;  Knox  v.  Hexter,  10  Jones  &  S.  496;  Comm.  v.  Magee,  8  Pa.  St. 
240,  49  Am.  Dec.  509;  Blair  v.  Hilgodick,  45  Minn.  23. 

201  IJvermore  v.  Hodjrkins.  54  Cal.  G37. 

20^  GraJigor  v.  Craig,  85  N.  \\  019. 


119  ISSUING  THE  ORIGINAL  EXECUTION.  §  3-2a 

desire  or  convenience  of  the  applicant  ought  not  to  be 
sustained.  While  it  was  in  one  instance  said  that 
"plaintiff,  having  obtained  his  judgment,  is  entitled  to 
enforce  it  unless  it  be  set  aside  or  modified  in  due 
course  of  law,"  -•'••  we  infer  that  this  apparently  rea- 
sonable assertion  is  not  maintainable  under  the  exist- 
ing decisions,  and  that,  on  the  other  hand,  each  court 
may  grant  tenii)orary  stays  of  execution  during  which 
time  the  plaintiff  has  no  right  to  a  writ  for  the  enforce- 
ment of  his  judgment,^^*  and  no  remedy  other  than  by 
appeal  or  writ  of  error,  and  that  these  remedies  will 
not  aid  him,  except  where  there  has  been  a  manifest 
abuse  of  the  discretion  of  the  court  in  granting  the 
stay. 

^  32  a.  Stay  of  Execution  as  the  Result  of  Appellate 
Proceedings. — AVhere  a  right  to  the  review  of  a  judg- 
ment or  decree  exists  and  may  be  exercised  either  upon 
appeal,  or  by  writ  of  error,  or  of  certiorari,  it  is  clear 
that  these  remedies  cannot  be  effective  unless,  during 
the  time  necessary  to  make  them  available,  the  execu- 
tion of  the  judgment  or  decree  complained  of  can  be 
suspended.  It  is  also  clear  that  injustice  must  often 
follow  the  suspension  of  the  right  to  execution  during 
the  prosecution  of  these  remedies  if  the  proceedings 
are  ultimately  found  to  be  free  from  error,  unless  the 
defendant  in  the  judgment  or  decree  shall  have  given 
some  security  that,  upon  its  affirmance,  he  will  comply 
therewith,  or,  at  least,  will  indemnify  the  plaintiff  for 
any  loss  resulting  from  the  suspension  of  the  right  to 
execution.     There  is  no  doubt  that  an  appeal  from  a 

203  I.iverraoro  v.  Hodgkins,  54  Cal.  G3S. 

a»*  Eatou  v.  Cleveland  etc.  li.  Co..  41  Fed.  Rep.  421. 


§  32a  ISSUING  THE  ORIGINAL  EXECUTION.  120 

decree  iu  chancery,-"^-"''  and  also  a  writ  of  error,-^**  or  a 
certiorari,-"'  from  the  time  of  its  allowance,  operates 
as  a  supersedeas  and  avoids  all  proceedings  thereafter 
taken,  though  consummated  before  any  notice  was 
given.  ''A  supersedeas,  properly  so  called,  is  a  sus- 
pension of  the  power  of  the  court  below  to  issue  an 
execution  on  the  judgment  or  decree  appealed  from; 
or,  if  a  writ  of  execution  has  issued,  it  is  a  prohibition 
emanating  from  the  court  of  appi  al  against  the  execu- 
tion of  the  writ.  It  operates  from  the  time  of  the  com- 
pletion of  those  acts  which  are  requisite  to  call  it  into 
existence.  If,  before  those  acts  are  performed,  an  exe- 
cution has  been  lawfully  issued,  a  writ  of  supersedeas 
directed  to  the  officer  holding  it  will  be  necessary;  but 
if  the  w^rit  of  execution  has  not  only  been  lawfully 
issued,  but  actually  executed,  there  is  no  remedy  until 
the  appellate  ]:>roceedings  are  ended,  when,  if  the  judg- 
ment or  decree  be  reversed,  a  writ  of  restitution  will  be 
awarded,"  -"^  At  the  present  time  there  are  but  few 
cases  either  in  England,-"^"  or  in  the  United  States,^**** 

2!>5  Helm  V.  Boone,  6  J,  J.  Marsh.  351,  22  Am.  Deo.  73;  Hovey  v. 
McDonald,  109  U.  S.  150. 

296  Kitcher  v.  R-andolpb,  9.3  U.  S.  SO;  Launtz  v.  Dixon,  5  Sandf. 
249;  Hughes  v.  Underwood,  1  Mod.  28:  Cleghorn  v.  Desanges,  Gow. 
G6;  Jaiiues  v.  Nixon,  1  Term  Rep.  279;  Capron  v.  Archer,  1  Burr. 
340;  Perkins  v.  W'oolaston,  Salk.  322;  ThoiTC  v.  Beer,  2  Barn.  & 
Aid.  373;  Hawkins  v.  Jones,  5  Taunt.  204. 

297  Allen  V.  Hopper,  24  N.  J.  L.  514;  McWilliams  v.  King,  32  N.  J. 
L.  21;  Gardiner  v.  Murray,  4  Yeates,  5G0;  Kingsland  v.  Gould,  1 
Ilalst.  IGl;  :Malrs  v.  Sparks,  2  South.  513;  Case  v.  Shepherd,  2 
Johns.  Cas.  27;  ISIayor  of  Macon  v.  Shaw,  14  Ga.  1<J2. 

29S  Hovey  v.  McDonald,  109  U.  S.  159. 

299  Bicknell  v.  LongstaCf,  6  Terra  Rep.  4,55;  Attenbury  v.  Smith.  2 
Dowl.  &  R.  85;  Smith  v.  Howard,  2  Dowl.  &  R.  85;  Abraham  v. 
Pugh,  5  Barn.  &  A!d.  903;  Smith  v.  Shepherd,  5  Term  Rep.  9. 

SCO  Cummings  v.  Cleggs,  82  Ga.  76G;  Stockton  v.  Bishop,  2  How.  74; 
Pratt  v.  Stage  Co.,  2G  Iowa,  241;  Jackson  v.  Schauber,  7  Cow.  417; 
Bonnell  v.  Neely,  43  111.  288;  Jones  v.  M,  &  A.  R.  R.  Co.,  5  How. 
(Miss.;  407;  Thomas  v.  Nicklas,  58  Iowa,  49;  Eakle  v.  Smith,  24  Md. 


121  ISSUING  THK  ORICINAL  KXHL'UTIOX.  §  3-'a 

in  which  either  an  appeal,  a  writ  of  error,  or  a  cer- 
tiorari will,  of  itself,  operate  as  a  supersedeas,  or  a 
stay  of  proceedings.  Statutes  have  been  enacted  by 
congress  and  also  by  the  legislatures  of  the  several 
states  providing  for  the  security  wlii<h  must  be  given 
on  the  prosecution  of  an  appeal  or  a  writ  of  error,  and 
also  that  additional  security  must  be  given  to  entitle 
the  appellant  or  plaintiff  in  error  to  stay  the  execution 
of  the  judgment  or  decree  during  the  pendency  of  the 
appellate  proceedings,  and,  as  a  general  rule,  no  stay 
of  execution  will  be  granted  or  results,  unless  the 
security  required  by  statute  is  given,  though  peculiar 
cases  may  occasionally  arise  in  which  the  court  thinks 
proper  to  stay  proceedings  by  virtue  of  its  common-law 
powers. ^"'^  In  one  instance  a  court  exercised  these  pow- 
ers  to  relieve  an  appellant  from  giving  security  tm  the 
ground  that  he  was  amply  able  to  respond  to  any 
judgment  which  might  be  given. '"'^ 

The  circumstances  in  which  execution  of  the  judg- 
ment may  be  stayed  pending  appellate  proceedings  are 
designated  in  various  statutes,  differing  in  their  de- 
tails, but  resembling  in  their  general  outlines.  A 
bond  for  the  payment  of  costs  is  generally  made  indis- 
pensable to  the  appeal,  and  in  some  contingencies  it 
operates  to  stay  the  proceedings.  When,  liow(  ver,  the 
judgment  is  for  the  payment  of  money  or  for  the  deliv- 
ery or  sale  of  property,  or  for  any  relief,  the  further 
withholding  of  which  might  occasion  its  loss  or  other- 

339;  Kill)ce  v.  Myrick,  12  Fla.  41G;  Ex  parte  Floyd.  40  Ala.  IIH: 
Castro  V.  lilies,  22  Tex.  479,  73  Am.  Dec.  277;  Tucker  v.  State.  11 
Mil.  322;  Branican  v.  Rose.  3  Gilni.  123;  .rolmstnn  v.  GoUlsboroii-:!!. 
1  Har.  &  J.  4!t9:  People  v.  Loncks.  28  Cal.  68;  Fulton  v.  Ilaima,  40 
Cal.  278;  Ela  v.  Weleb.  9  Wis.  395. 

SOI  RosenfieUl  v.  Stix,  07  Mo.  App.  5S2;  Grangi-r  v.  Craig,  So  X.  Y. 
G19;  Qulnlan  v.  Russell,  48  N.  Y.  Sup.  Ct.  537. 

802  I'olhamus  v.  Moser,  7  Robt.  443. 


§  o'-'a  ISSUING  THE  ORIGINAL  EXECUTION.  122 

wise  seriously  prejudice  the  prevailing  party,  a  further 
bond  is  generally  exacted  in  some  sum  designated  by 
statute  or  fixed  by  a  rule  or  order  of  court.^**-'  In  order 
to  obtain  the  supersedeas  it  is  well  settled  that  the  law 
must  be  strictly  conformed  to  and  every  act  designated 
in  the  statute  must  be  f)erformed  Avithin  the  time,  and 
substantially  in  the  manner  specified  in  the  statute.^^' 
Formerly  it  appears  to  have  been  the  practice  to 
issue  the  supersedeas  out  of  the  court  in  which  the 
judgment  was  entered.^**^  There  is  no  doubt,  how- 
ever, at  the  present  time,  that  the  appellate  courts, 
in  the  exercise  of  their  jurisdiction,  have  ample  author- 
ity to  issue  a  supersedeas  against  the  issuing  of  an 
execution  by  the  subordinate  court,  or  against  taking 
any  further  proceedings  under  a  writ  already  issued. "^^* 
According  to  the  practice  of  some  courts,  though  an 
appeal  or  writ  of  error  is  perfected  and  accompanied 
with  such  security  as  is  required  to  stay  the  further 
execution  of  the  judgment,  some   special  order  is  re- 

803  Telegraph  Co.  v.  Eyser,  19  Wall.  410;  Orchard  t.  Hu.2;hos,  1 
Wall.  73;  Kinggold's  Case,  1  Bland.  5;  Fitzgerald  v.  Beebe,  7  Ark. 
310,  46  Am.  Dec.  285;  Desty's  Fed.  Proc,  p.  672.  Sometimes  no 
bond  is  exacted  where  the  appeal  is  by  the  people,  or  by  an  officer 
•who  has  given  an  official  bond.  People  v.  Clingan,  5  Cal.  389;  Trap- 
nail  V.  Brownlee,  8  Ark.  207. 

S04  Kitchen  v.  Randolph,  93  U.  S.  86;  Erie  City  Bank  v.  Compton, 
27  Pa.  St.  105;  The  Roanoke,  3  Blatchf.  390;  Penn.  II.  R.  Co.  v. 
Commonwealth,  39  Pa.  St.  403;  Sage  v.  C.  R.  R.,  93  U.  S.  412;  Tucker 
V.  State,  11  Md.  322;  Ilanna  v.  Pitman,  25  Ark.  275;  Hogan  v.  Ross, 
11  How.  297;  Alderman  v.  Rivenbark,  96  N.  C.  134;  Baltimore  etc.  Co. 
V.  Harris.  7  Wall.  575. 

305  McWilliams  v.  King,  32  N.  J.  Eq.  23. 

306  State  V.  Board  of  Education,  19  Wash.  8,  07  .Vm.  St.  Rep. 
706;  Hill  v.  Finnegan,  54  Cal.  493;  Lee  Chuck  v.  Quan  Wo  Ching 
Co.,  81  Cal.  222,  15  Am.  St.  Rep.  50;  Western  etc.  Co.  v.  State.  69 
Ga.  524;  Thomas  v.  Sullivan.  11  Nev.  280;  Spears  v.  Mathews,  66 
N.  Y.  127;  Cralle  v.  Cralle.  81  Va.  773:  McWilliams  v.  King.  32  N.  J. 
L.  24;  Keyser  r,  Farr,  105  U.  S.  265;  Draper  v.  Davis,  102  U.  S.  370- 


123  ISSUING  THE  ORIGINAL  KXKCUTION.  §  .'{-Ja 

quired  to  stay  tlie  execution,  ^^'  but,  as  a  general  rule, 
a  conipliauce  with  the  statute,  ipso  facto,  operates  as 
a  sta}^  of  proceedings,  and  no  formal  ordV-r  of  court  to 
that  effect  is  recjuired.'*^**  A  supersedeas  arising  from 
the  allowance  of  a  writ  of  error  or  of  a  certiorari  may 
operate  to  prevent  the  issue  of  an  execution  or  tiie 
service  of  an  execution  already  issued.  In  either 
event,  it  is  merely  suspensive  in  its  effect,  and  can- 
not operate  retroactively  to  avoid  or  annul  proceed- 
ings previously  taken.'^^  It  did  not  abate  a  writ  which 
had  aln^adj'  been  partly  executed.  Hence,  where  a 
levy  had  already  been  made,  it  was  the  duty  of  tlie 
officer  to  proceed  to  sell  the  property.^^^  In  tlie 
United  States,  this  rule  of  the  common  law  has  been 
very  generally  supplanted  by  statu!  ory  provisions,  by 
virtue  of  which  a  suflicient  undertaking  on  appeal, 
while  it  does  not  usually  destroy  existing  levies  or 
liens,  suspends  all  further  proceedings  until  the  final 
disposition  of  the  appeal.****  A  stay  in  favor  of  one 
of  the  defendants  does  not  suspend  the  right  to  issue 

S07  McGill  V.  Mc(iill,  19  Fla.  341;  Reed  v.  Lamler,  5  Bush,  599; 
Whitelioad  v.  Boorora,  7  Bush,  401;  Green  v.  Grittiu,  95  N.  C.  50. 

808  Born  v.  Ilorsliiiau,  SO  Cal.  452;  Burge  v.  Burns.  Morris.  285; 
State  V.  Volmor,  6  Kan.  1579;  Goddard  v.  Ordwaj-,  94  U.  S.  G72. 

309  Kunyon  v.  Bennett,  4  Dana,  59S,  29  Am.  Dec.  431;  Board  of 
Commrs.  v.  Gorman,  19  Wall.  GOl;  Freeman  v.  Dawson,  110  U.  S. 
264;  Livingston  v.  New  York  E.  R.  Co.,  15  N.  Y.  Supp.  191. 

310  Charter  v.  Peeter,  Cro.  Eliz.  597;  INIeritou  v.  Stevens,  Willes, 
271;  Blanchard  v.  Myers,  9  Johns.  05;  Kinuie  v.  Whilfoni,  17  Johns. 
34;  Patfhin  v.  The  Mayor,  13  Wend.  (;c.4;  Payfer  v.  Bissell,  3  Hill. 
239;  Mayor  of  :Macon  v.  Shaw,  14  (Ja.  I(i2;  Board  of  Commissioners 
V.  Gorman,  19  Wall.  6G1. 

811  Delalield  v.  Saiulford,  3  Hill,  473;  North  Western  Co.  v.  LanJes, 
6  Minn.  5G4.  In  Alabama,  the  proceeding  for  a  supersedeas  is  by 
petition.  Shearer  v.  Boyd,  10  Ala.  281;  Spence  v.  Walker,  7  Ala. 
568;  Powell  v.  Washington,  15  Ala.  803;  Parker  v.  Dean,  45  Miss. 
408. 


S  33  ISSUING  THE  ORIGINAL  EXECUTION.  124 

execution  against  tlie  others/**^-  A  motion  to  vacate 
a  judgment,  or  to  quash  an  execution,  does  not  stay 
proceedings.^^  ='  AVliere  a  stay  is  desired,  pending  the 
hearing  of  the  motion,  an  order  of  the  court  to  that 
effect  should  be  obtained.  A  supersedeas  should  be 
granted  by  the  court  having  at  the  time  the  custody 
of  the  record.^^'*  There  can  be  no  doubt,  however, 
that  this  rule  cannot  be  so  enforced  as  to  leave  the 
appellate  court  practically  without  power  to  effec- 
tively exercise  its  appellate  jurisdiction,  and  hence 
that,  though  the  record  should  remain  in  the  subor- 
dinate court,  the  appellate  court  may,  by  a  supersedeas, 
prevent  the  issue  or  the  execution  of  the  process  of 
the  lower  court  when  the  further  execution  thereof 
has  become  improper,  owing  to  the  pendency  of  appel- 
late proceedings  so  perfected  that  the  plaintiff  is  not, 
until  their  termination,  entitled  to  enforce  his  judg- 
ment. 

§  33.  Execution  Issued  Pending  a  Stay.— An  execu- 
tion issued  pending  a  stay  thereof  granted  by  the 
court  or  by  a  statute  is,  of  course,  irregular,  and  may 
be  quashed  on  motion.  But  it  may  happen  that  for 
want  of  such  motion  the  execution  is  never  arrested, 
and  property  is  seized  and  sold  thereunder.  In  such 
case,  as  in  all  other  cases  of  irregular  execution,  the 
authorities  are  conflicting,  some  asserting  that  the 
writ,  having  erroneously  issued,  remains  in  force  till 
the  error  is  corrected,**^°  and  others  maintaining  that, 

312  Sheetz  v.  lluber,  31  Les.  Int.  28;  6  Leg.  Gaz.  08. 
ai3  Spang  y.  Cominouwealth,  and  Commonwoalth  v.  Freedley,  12 
Pa.  St.  3.j8;  Bryan  v.  Berry,  8  Cal.  130. 

314  Payne  v.  Thompson,  48  Ala.  535. 

315  Swlggart  V.  Harber,  4  Scam.  304,  39  Am,  Dec.  418;  Sliootz  v. 
Iluber,  6  Leg.  Gaz.  OS,  31  Leg.  Int.  28;  Oakes  v.  Williams,  107  111. 


125  ISSUING  THE  ORIGINAL  EXECUTION.  §  33 

the  court  for  the  time  being  having  no  power  to  issue 
the  execution,  the  writ  is  void."*®  The  only  decision 
coming  without  our  observation  sustaining  this  view 
has  been  much  weakened,  though  not  expressly  over- 
ruled, by  later  decisions  in  the  same  slate,  which,  as 
it  seems  to  us,  necessarily  affirm  that  an  execution 
issued  in  violation  of  a  stay  is  irregular  merely.^*'' 
Whether  a  writ  issued  after  a  valid  stay  of  execution 
is  void  or  not,  it  is  evident  that  it  cannot  be  regarded 
as  valid  for  all  purposes.  The  plaiutilf  and  the  officer 
charged  with  the  execution  of  a  writ,  on  being  in- 
formed of  a  stay  of  execution,  whether  resulting  from 
an  order  of  court  or  from  such  a  compliance  with  the 
law  as  to  create  such  a  stay,  should  discontinue  their 
proceedings.  If  they  p-rsist  in  disregarding  the  stay 
and  in  acting  uuder  the  execution,  thev  are  no  lonaer 
entitled  to  its  protection,  and  the  defendant  may  main- 
tain an  action  against  them  to  recover  damages  result- 
ing to  him  from  their  unlawful  conduct,"^**  or  he  may 
cause  them  to  be  brought  before  the  court  and  pun- 
ished for  contempt,  if  they  have  violated  its  order 
after  notice  thereof.^**^  In  New  York,  the  stay  of  exe- 
cution resulting  from  an  appeal  bond  does  not  ter- 
minate when  the  judgment  of   the  appellate  court  is 

154;  Shirk  v.  M.  &  N.  G.  G.  Ry.  Co..  110  111.  601.  Perhaps  a  sheriff 
or  constable  may  lawfully  refuse  to  enforce  a  writ  Issued  in  con- 
travention of  a  stay  of  proceedings.  Palmer  r.  Galbrcath,  74  Ind. 
84;  Briirgs  v.  Shea,  48  Minn.  218. 

316  Milliken  V.  Brown,  10  Serg.  &  R.  188. 

31T  Stewart  v.  Stocker.  13  S.  &  R.  109,  15  Am.  Dec.  589;  Wil- 
kinson's Appeal.  G5  Pa.  St.  1S9. 

318  O'Doiinell  v.  MuUin.  27  Pa.  St.  199.  67  Am.  Dor.  4.-)S:  Ilopkinson 
V.  Sears,  14  Vt.  494,  39  Am.  Dec.  236;  Belshaw  v.  Marshall,  4  Barn. 
&  Ad.  336;  Bleasdale  v.  Davby,  9  Price,  606. 

319  Williams  v.  King,  32  N.  J.  L.  24;  Haunoti  v.  Farrettes,  Barnes, 
876. 


§  34  ISSUING  THi2)  ORIGINAL  EXECUTION.  126 

orally  pronounced  and  entered  on  the  minutes.  To 
supersede  the  stay,  there  must  be  a  formal  judgment 
entered  by  the  clerk.  An  execution  issued  before  the 
entry  of  this  formal  judgment,  though  irregular,  will 
not  be  vacated  except  upon  prompt  application;  and, 
if  not  vacated,  will  be  treated  as  valid.^^® 

§  34.    The  Constitutionality  of  Stay  Laws.— it  is  well 
known  that  a  distinction  has  been  made  by  judges  and 
by  writers  upon  constitutional   law  between  laws  im- 
])airing  the  obligation  of  contracts  and  laws  regulat- 
ing  the  remedies  by  which   those    contracts  may  be 
enforced.     By  this  distinction   the  former  laws  have 
been  avoided  and  the  latter  upheld.     There  is  so  in- 
timate a  connection  between  a  right  and  the  means 
by  which  it  may  be  enforced  that  the  justness  of  this 
distinction  may  well  be  doubted;  for  substantially  we 
destroy  a  right  when  we  destroy  the  legal  methods  of 
enforcing  it,  and  we  abridge  or  enlarge  the  right  when 
we  abridge  or  enlarge   those  methods.     The  right  to 
judgment  ought  necessarily  to  be  inseparable  from 
the  right  to  speedy  execution;  and  hence  all  laws  pro- 
fessing to  postpone  or  suspend  the  right  to  execution, 
whether  in   regard  to   pre-existing  judgments   or   in 
regard  to  judgments  on  pre-existing  contracts,  ought 
not  to  be  enforced  when  their  manifest   tendency  is 
to  diminish  the  plaintiff's  opportunities  for  reaping  the 
fruits  of   his  judgment.     It  is,  however,  quite  certain 
that  some  alteration  may  be  made  in  the  laws  allow- 
ing execution,  by  which  the  time   for   its   issue   may 
be  somewhat  postponed,  and  the  chancers  of  the  plain- 
tiff's obtaining  satisfaction  somewhat  diminished.     No 

320  Bowman  v.  Tallman,  28  How.  Pr.  483;  3  llobt.  033;  2  Kobt. 
632;  LentillioiJ  v.  Mayor,  1  Code  K.,  N.  S.,  111. 


127  ISSUING  THE  ORIGINAL  EXECUTION.  §  34 

•suflBciontlj  exact  tost  can  be  made  by  wliicli  to  de- 
termine precisely  what  laws  are  prohibited  and  what 
upheld.  The  most  that  can  be  said  is,  that  no  change 
in  the  remedy  will  br  enforced  where  it  amounts  to  a 
substantial  denial  of  the  right.  "It  is  difficult,  per 
haps,  to  draw  a  line  that  would  be  api)licable  in  all 
cases  between  legitimate  alterations  of  the  rcuK  dy  and 
j)rovisions  which  in  the  form  of  remedy  impair  the 
right.  But  it  is  manifest  that  the  obligation  of  the 
contract  and  the  rights  of  a  party  under  it  may,  in 
effect,  be  destroyed  by  denying  a  remedy  altogether; 
or  may  be  seriously  impaired  by  burdening  the  x^ro- 
ceedings  with  new  conditions  and  restrictions,  so  as 
to  make  the  remedy  hardly  worth  pursuing.  And  no 
one,  we  presume,  would  say  that  there  is  any  substan- 
tial difference  between  a  retrospective  law  declaring  a 
particular  contract  or  class  of  contracts  to  be  abro- 
gated and  void,  and  one  which  took  away  all  remedy 
to  enforce  them,  or  encumbered  it  with  conditions  that 
rendered  it  useless  or  impracticable  to  pursue  it."  ^^^ 
Laws  regulating  judgments  and  judgment  liens,  to- 
gether Avith  the  time  and  manner  of  their  enforcement 
by  execution,  are  said  to  affect  the  remedy  merely,^^ 
and  are  therefore  sometimes  given  a  retrospective 
operation.  This,  however,  is  true  only  of  those  statu- 
tory changes  in  which  the  prime  object  does  not  appear 
to  be  to  delay  the  judgment  creditor,  or  to  compel  him 
to  accept  an  inadequate  satisfaction  of  his  debt.  In 
times  of  great  financial  embarrassment,  the  legisla- 
tures of  several  of  the  states  have  attempted  to  pro- 
tect judgment  and  other  debtors  from  a  sacrifice  of 
their  property  at  forced  sale,  and  have  enacted  laws, 

321  Bronson  v.  Kinzle,  1  How.  317. 

322  Bank  of  Uuited  Slates  v.  Lougwortb,  1  McLean,  35. 


§  :U  ISSUING  THE  ORIGINAL  EXECUTION.  128 

some  of  which  provided  that  no  execution  should  be 
issued  or  enforced  within  certain  periods;  and  others 
declared  that  such  execution  could  issue  only  when 
plaintiff  was  willing  to  accept  payment  in  bank  notes, 
or  other  depreciated  currency.  These  statutes,  though 
prompted  by  motives  of  the  most  humane  character, 
and  perhaps  even  sustainable  on  grounds  of  public 
polic}',  were  liable  to  the  most  unanswerable  consti 
tutional  objections.  They  either,  for  months  or  years, 
took  from  the  creditor  all  remedy,  or  coerced  him  into 
accepting  something  different  from  and  less  valuable 
than  that  contemplated  by  his  original  contract. 
They  have,  therefore,  been  almost  uniformly  declared 
to  possess  no  validity,  on  the  ground  that  in  their  op- 
eration they  necessarily  impaired  the  obligation  of 
contracts.^^^     Nor  can  one  creditor  be  compelled  to 

823  Dormire  v.  Cogly,  8  Blackf.  177;  Strong  v.  Daniel,  5  Ind.  348;. 
Baily  v.  Gentry,  1  Mo.  1G4,  13  Am,  Dec.  484;  Brown  v.  AVard,  1  Mo. 
209;  Bumgarduer  v.  Circuit  Court,  4  Mo.  50;  Lapsley  v.  Brashears, 
4  Litt.  47;  Hudspeth  v.  Davis,  41  Ala.  389;  Pool  v.  Young,  7  T.  B. 
Mon.  588;  Miller  v.  Gibson,  03  N.  C.  635;  Ex  parte  Pollard  and 
Woods,  40  Ala.  77;  Stevens  v.  Andrews,  31  Mo.  205;  Jacobs  v.  Small- 
wood,  63  N.  C.  112;  Taylor  V.  Stearns,  18  Gratt.  244;  Garlington  v. 
Priest,  13  Fla.  559;  Crittenden  v.  Jones,  1  Car.  Law  Rep.  385,  6  Am. 
Dec.  531;  State  v.  Carew,  13  Rich.  506,  91  Am.  Dec.  245;  Jones  v. 
McMahan,  30  Tex.  720;  Coffman  v.  Bank  of  Kentucky,  40  ^Vliss.  30, 
90  Am.  Dec.  311;  Grayson  v.  LiUy,  7  T.  B.  Mon.  10;  Stephenson  v. 
Baniett,  7  T.  B.  Mon.  50;  Aycock  v.  Martin,  37  Ga.  124,  92  Am. 
Dec.  56;  W^ebster  v.  Rose,  6  Ileisk.  93,  19  Am.  Rep.  583;  Edwards  v. 
Kearzey,  96  U.  S.  601.  "Does  an  act  to  suspend  execution  impair 
tlie  obligation  of  contracts  made  before  it?  What  the  obligation 
of  a  contract  is  may  be  discerned  by  considering  what  it  is  that 
makes  the  obligation.  The  contract  alone  has  not  any  legal  oblj- 
gation,  and  why?  Because  there  is  no  law  to  enforce  it.  The  con- 
tract is  made  by  the  parties,  and  if  sanctioned  by  law,  it  promises 
to  enforce  performance  should  tlie  party  decline  performance  him- 
self. The  law  is  the  source  of  tin;  obligation,  and  the  extent  of  the 
obligation  is  defined  by  the  law  in  use  at  the  time  the  contract  is 
made.  If  tliis  law  direct  a  specific  execution,  and  a  subsequent  act- 
declare  that  there  shall  not  'be  a  specific  execution,  the  oljligatiou 


129  ISSUING  THE  ORIGINAL  PLKECUTION.  §  34 

stay  execution  because  others  are  willing  to  do  so. 
Hence,  an  act  autliorizing  a  court  to  stay  execution 
upon  the  written  assent  of  more  than  two-thirds  of 
the  defendant's  creditors  is  unconstitutional. ■'^"*  Dur- 
ing the  late  Civil  AVar,  statutes  were  enacted  in  sev- 

of  the  contniet  is  lessened  aud  impaired.  If  the  law  in  being  at  the 
date  of  llie  eoutract  give  au  equivalent  in  money,  and  a  subsequent 
law  say  the  equivalent  should  not  be  in  money,  such  act  would 
impair  the  obligation  of  the  contract.  If  the  law  in  being  at  the 
date  of  the  contract  give  immediate  execution  on  the  rendition 
of  the  judgment,  a  subsequent  act,  declaring  that  the  execution 
should  not  issue  for  two  years,  would  lessen  or  impair  the  contract 
equally  as  much  in  principle  as  if  it  suspended  execution  forever; 
in  Avhich  latter  case  the  legal  obligation  of  the  contract  would  be 
wholly  extinguished.  The  legislature  may  alter  remedies;  but  they 
must  not,  so  far  as  regards  antecedent  contracts,  be  rendered  less 
efficacious  or  mure  dihitory  tlian  those  ordained  by  the  law  in  being 
when  the  contract  was  made,  if  such  alteration  be  the  direct  and 
special  object  of  the  legislature,  apparent  in  an  act  made  for  the 
purpose.  Though  possibly,  if  such  alteration  were  the  consequence 
of  a  general  law,  and  merely  incidental  to  it,  which  law  had  not  the 
alteration  for  its  object,  it  might  not  be  subject  to  the  imputation 
of  constitutional  repugnance.  The  legislature  may  regulate  con- 
tracts of  all  sorts,  but  the  ri'gulation  must  be  before,  not  after,  the 
time  when  the  contracts  are  made."  (Townsend  v.  Townsend,  1 
Peck.  13,  14  Am.  Dec.  722.)  In  treating  a  similar  question,  in  Blair 
V.  Williams,  4  Lift.  46,  the  court  of  appeals  in  Kentucky  said: 
**Does,  then,  the  act  of  assembly  in  question  impair  that  obligation? 
By  the  law  as  it  stood  at  the  date  of  the  contract,  the  defendants 
were  allowed  to  replevy  the  debt  but  for  three  months  only,  and  the 
money,  if  sot  then  paid,  was  required  to  be  made  of  their  estate, 
without  further  delay;  but,  by  the  act  in  question,  they  are  allowed 
to  replevy  the  debt  for  two  years,  or  enter  into  a' recognizance  for 
the  payment  of  the  money  within  that  time.  Aud  surely  it  cannot 
require  argument  to  prove  that  the  latter  act  impairs  the  obligation 
imposed  by  the  former  law.  Indeed,  the  avowed  object  of  the  act 
in  question  was  to  relieve  the  debtor  from  the  obligation  he  was 
under  to  pay  his  debt  in  the  time  prescribed  by  the  former  law,  and 
give  him  further  time  of  payment,  and,  according  to  any  sense  of  the 
word,  tl'.e  act  in  question  must  impair  the  obligation  imposed  by  the 
former  law,  and  is  therefore  unconstitutional  and  void,  as  it  relates 
to  the  contract  between  the  parties  in  this  case,  as  well  as  to  all 
contracts  made  previous  to  the  passage  of  the  act." 
824  Bunn  V.  Gorgas,  41  Pa.  St.  441, 
Vol.  1—9 


§  35  ISSUING  THE  ORIGINAL  EXECUTION.  130 

i>ral  states  for  the  purpose  of  staying  execution  against 
volunteers  in  the  service  of  the  United  States.  As  the 
tendency  of  these  statutes  was  to  encourage  enlist- 
luents,  and  thereby  to  aid  in  the  preservation  of  the 
national  go^•e^nnlent,  it  was  perfectly  natural  that  the 
courts  should  seek,  if  possible,  to  sustain  them.  These 
statutes  were  generally  upheld,  ^^'*  except  where  they 
were  held  to  authorize  an  indefinite  stay  of  execu- 
tion,*-** or  where  the  defendants  had  agreed  to  waive 
the  right  to  such  stay.*^''^  There  can  be  no  doubt  of 
the  validity  of  stay  laws  when  applied  to  proceedings 
ijpon  contracts  made  after  their  passage.  In  such 
cases,  the  stay  law  does  not  impair  the  obligation  of  the 
contract;  but  is  rather  to  be  regarded  as  part  of  the 
considerations  and  conditions  ui)on  which  the  contract 

was  made,  and  as  becoming  a  part  of  the  contract 
itself.«28 

§  35.  Death  of  Sole  Plaintiff  or  Defendant.— The  time 
Avithin  which  execution  may  ordinarily  be  sued  out 
may  be  affected  by  the  death,  either  of  a  sole  plaintiff 
or  of  a  sole  defendant.  Upon  the  happening  of  either 
of  these  events,  the  right  to  issue  process  is,  except 
Avliere  the  rule  of  the  common  law  has  been  modified 
by  statute,  suspended,  and  so  remains  until  the  judg- 
ment can  be  revived  by  scire  facias,  or  until  the  proper 

225  McCormick  v.  Itusch,  15  Iowa,  127,  83  Am.  Doc.  401;  Broiton- 
bach  V.  Bush,  -J4  Va.  St.  313,  84  Am.  Dec.  442;  Coxo's  Ex'r  v.  Martin, 
44  Pa.  St.  322:  .Johnson  v.  Duncan,  3  Mart.  (La.)  530,  l>  Am.  Dec. 
G75. 

326  Hasbrouck  v.  Shipman,  10  Wis.  290;  Clark  v.  Martin,  3  (Jrant 
Cas.  393,  49  Pa.  St.  299. 

327  Billmeyer  v.  Evans,  40  Pa.  St.  324;  Lewis  v.  Lewis,  47  Pa.  St. 
127. 

328  Barry  v.  Iseman.  11  Uicli.  129;  Wardlaw  v.  liuzzard.  1."  Kicli. 
15S.  94  Am.  Dec  148;  Bruns  v.  Crawford,  34  Mo.  33M;  Domieli  v. 
Stephens,  35  :^Io.  441. 


131  ISSUING  THE  ORIGINAL  EXEUUIION.  §  35 

representatives  of   the  deceased    can,  in  some  appro- 
priate man  tier,  be  brought  before  the  court,  and  made 
parties  to  I  he  record."**""     The  remedy  by  scire  facias 
has  fallen  into  disuse  in  many  of  the  states,  and  its 
I)Iace  has  been    taken    by  some  remedy  provided    by 
statute.     Thus,  in  Indiana,  when  the  defendant  dies 
subsequent  to  judgment,  the  right  to  take  out  execu- 
tion seems  to  be  suspended    thereby,  until  one  year 
after  the  granting  of  letters  of  administration  on  his 
estate.     His  heirs  may  then  be  summoned  to  show 
cause   why   the   judgment    should    not     be   enforced 
against  his  estate  in  their  hands.     They  may  appear 
in  response  to  the  summons,  and  issues  may  be  made 
up  and  tried.     If  the  issues  are  determined  in  favor 
of  the  creditor,  a  judgment  is  entered  directing  that 
the  money  be  made  out  of  the  assets  in  the  hands  of 
the  administrator,  and,  if  they  prove  insufficient,  then 
out  of  the  lands  of  the  decedent.^**     If  the  judgment 
is  not  an  ordinary  money  judgment,  but  one  directing 
the  sale  of  lands,  the  death  of  the  defendant  does  not 
render  necessary  any  proceedings  by  way  of  revivor. 
This  is  because   the   judgment    operates  in  rem,  and 
binds  all  persons  acquiring  any  interest  in  the  prop- 

329  Hubert  V.  ■Williams,  Walk.  175;  Wilson  v.  Kirkland,  Walk. 
155;  Davis  v.  Helm.  3  Smedos  &  M.  17;  McMahon  v.  Glasscock,  5 
Yerg.  304;  IMillor  v.  Doan.  19  Mo.  0.">0;  Swearingen  v.  Eljeiius,  7  Mo. 
421.  38  Am.  Dec.  40:5;  Sims  v.  Eslava,  74  AJa.  594;  Brown  v.  New- 
man, 66  Ala.  275;  Smith  v.  Loekett.  73  Ga.  104;  Moore  v.  Bell,  13 
Ala.  400;  Boylo  v.  Maroney,  73  Iowa,  70,  5  Am.  St.  Bop.  057;  Breck- 
inridge V.  Taylor,  1  B.  Mon.  263;  Ballinger  v.  Redhead,  1  Kan. 
-\pp.  434;  .Icnuess  v.  Lapeer  Circuit  Court,  42  Mich.  469;  Bower  v. 
llolladay,  18  Or.  491;  W^eaver  v.  Pickard,  7  Utah,  296;  Hooper  v. 
Caruthers,  78  Te.x.  432;  Tucker  v.  Carr  (R.  I.).  40  Atl.  1. 

^30  Faulkner  v.  Larrabee,  76  Ind.  154;  Graves  v.  Skeels,  6  Ind. 
107.  Similar  proceedings  are  required  in  some  of  the  otlier  states. 
Wallace  v.  Swiuton,  64  N.  Y.  195;  Eaton  v.  Youngs,  41  Wis.  507. 


§  35  ISSUING  THE  ORIGINAL  EXECUTION.  132 

erty  from  or  under  the  defend  ant  s.^^^  Tlie  statutory 
proceeding  to  revive  a  judgment  against  a  decedent 
must  not  be  confounded  with  the  proceeding  to  ob- 
tain execution  on  a  judgment  dormant  through  lapse 
of  time,  for  an  execution  issued  as  the  result  of  the 
last-named  proceeding  will  be  entirely  abortive  in  its 
effect  against  the  heirs  of  the  decedent.^^^  In  Illinois, 
if  the  defendant  die  after  judgment,  execution  may 
issue  against  his  lands  and  tenements,  after  three 
months'  notice  in  writing  has  been  given  to  his  execu- 
tor or  administrator  of  the.  existence  of  the  judgment;, 
but,  if  there  be  no  executor  or  administrator,  the  judg- 
ment must  first  be  revived  by  scire  facias.^*^^  But 
it  must  be  remembered  that,  under  the  English  prac- 
tice, the  teste  of  the  execution  and  the  actual  date  of 
its  issuing  were  often  different.  Upon  the  entry  of 
judgment  in  any  part  of  the  term,  or  during  vacation, 
an  execution  could  issue  tested  the  first  day  of  the 
term.  The  execution  was  treated  as  if  actually  issued 
on  the  day  of  its  teste;  and  the  death  of  the  plaintiff 
or  defendant,  subsequently  to  the  teste,  had  no  other 
effect  beyond  what  it  would  have  had  if  occurring  sub- 
sequently to  the  actual  issuing  of  the  writ.^^*  Whether 

331  Kellogg  V.  Tout,  65  Ind.  151;  Hays  v.  Thomas,  56  N.  Y.  521; 
Harrison  v.  Simons,  3  Edw.  Ch.  394. 

332  Wallace  v.  Swinton,  G4  N.  Y.  195;  Faulkner  v.  Larrabee,  76 
Ind.  154. 

333  Coran  v.  Pettinger,  92  111.  241. 

334  Cleve  V.  Veer,  Cro.  Car.  4.59;  Bragner  v.  Langmead,  7  Term 
Rep.  20,  explaining  and  modifying  Ileapy  v.  Parris,  6  Term  Rep. 
368;  ColliTigsworth  v.  Horn,  4  Stew.  &  P.  240,  24  Am.  Dec.  753;  Cen- 
ter V.  Billingliurst,  1  Cow.  34;  Fox  v.  Lamar,  2  Btov.  417;  Robinson 
V.  Tonge,  3  V.  Wms.  39,<5;  Preston  v.  Snrgoiiie.  Peck.  81:  Battle  v. 
Bering.  7  Ycrg.  531,  27  Am.  Dec.  52G;  Waghorne  v.  Langmead,  1 
Bos.  it  P.  571;  Nichols  v.  Chapman,  9  Wend.  4,52;  Hay  v.  Fowler, 
1  How.  Pr.  127;  Black  v.  Planters'  Bank.  4  IIuiiipli.  367;  Day  v. 
Rice,  19  TVend.  644;  Den  v.  Ilillin.Tii.  2  Halst.  ISO:  Davis  v.  Helm, 
3  Smedcs  &  M.  34;  Montgomery  v.  Realhafer,  85  Tenn.  668. 


133  ISSUING  THE  ORIGINAL  EXECUTION.  §  35 

a  writ  tested  before  the  death  of  the  defendant,  but 
actually  issued  afterward,  may  be  levied  on  lands  and 
a  valid  sale  made  thereunder,  cannot  be  regarded  as 
finally  settled.  In  one  case  where  the  question  was 
not  necessarily  involved,  it  was  intimated,  on  the  au- 
thority of  Tidd's  l*ractice,  that,  when  the  right  to 
take  lands  in  execution  was  established,  it  followed 
that  they  might  be  taken  under  the  same  circum- 
stances as  personal  property,  and  hence,  that  if  a  writ 
tested  before,  but  issued  after,  the  death  of  the  defend- 
iint  can  be  levied  upon  his  goods  and  chattels,  his 
lands  may  also  be  subject  to  an  elegit  issued  under 
like  circumstances,*^^"*  and,  under  the  authority  of  this 
case,  it  was  decided  that  the  dissolution  of  a  corpo- 
ration after  the  teste  of  an  execution  against  it,  but 
before  the  actual  levy  thereof,  did  not  render  invalid 
the  sale  of  its  lands  under  such  writ.^^**  In  New  York, 
on  the  other  hand,  it  has  been  in:>isted  that  the  per- 
mitting the  issuing  of  a  writ  of  execution  after  the 
death  of  the  defendant,  because  tested  before,  applied 
only  to  writs  of  fieri  facias,  under  which  no  levy  upon 
real  property  could  be  made  at  the  common  law;  and 
hence,  that  the  real  property  of  a  deceased  defendant 
does  not  come  within  the  rule  permitting  proceedings 
under  writs  issued  after  his  death  but  tested  before.^^'^ 
When  the  term  at  which  judgment  was  entered  had 
entirely  passed,  the  right  to  teste  executions  as  of 
that  term  ended.  Hence,  if  defendant  died  subse- 
quently to  the  lapse  of  the  term,  or,  if  dying  during  the 
term,  no  execution  was  sued  out  against  him  until  the 

835  Erwin  v.  Dundas,  4  How.  5S. 

336  Boyd  V.  IlaiUvinson.  S3  Fed.  Rep.  STG. 

337  stj-metz  V.  Ri-ooks.  10  Weud.  20(5;  AVallace  v.  Swinton,  64  N.  Y. 
188:  Wood  V.  MuoiL'bouse.  45  X.  Y.  308. 


§  35  ISSUING  THE  ORIGINAL  EXECUTION.  134 

succeeding  term,  a  revivor  of  the  judgment  by  scire 
facias  became  necessary  to  entitle  plaintiff  to  sue  out 
execution.'**^*^  If,  however,  the  teste  of  the  Avrit  when* 
it  is  issued  under  the  English  practice,  or  the  actual 
date  of  its  issue  where  the  fiction  of  the  English  law 
is  not  enforced,  be  subsequent  to  the  death  of  a  sole 
plaintiff,  in  whose  name  it  issues,  then  there  can  be 
no  doubt  that  the  writ  is  irregular.  By  the  common 
law,  however,  the  court  still  has  power  to  award  exe- 
cution upon  the  revival  of  the  judgment  by  scire 
facias.  The  power  of  the  court  seems  to  be  as  ample, 
and  to  be  properly  invoked  in  the  same  manner,  as 
wlien  judgment  becomes  dormant  for  want  of  execu- 
tion Avithin  a  year  and  a  day.  If  an  execution  issued 
without  scire  facias  is  n*ot  void  in  the  latter  case,  it 
ought,  upon  principles  equally  applicable  to  both,  to 
be  uplield  in  the  former  case.  This  view  has  been 
accepted  by  some  judicial  tribunals,  and  has  led  to  the 
declaration  that  an  execution  in  the  name  of  a  de- 
ceased plaintiff,  though  voidable,  is  not  void."^  But. 
on  the  other  hand,  it  has  been  maintained  that,  by 
the  death  of  the  plaintiff,  the  judgment  also  dies,  sub- 
ject, however  to  resurrection  by  scire  facias,  and  that, 
until  so  resurrected,  "its  life  is  suspended,  and  the 
authority  which  it  gave  to  issue  execution  for  tlie  time 
being  Avithdrawn,  and  the  judgment  stands  as  if  it 
never  had  been  rendered." '^*^     In  Wisconsin,  by  stat- 

338  Coapor  V.  May,  1  IlaiT.  IS;  Dibble  v.  Taylor,  2  Speers,  308, 
42  Am.  Dec.  .368;  Davis  v.  Oswalt,  18  Ark.  414,  68  Am.  Dec.  182; 
Coliingswoith  v.  Horn,  4  SteAV.  &  P.  237,  24  Am.  Dec,  7.j:-]. 

330  Day  V.  .Shnrp,  4  Whart.  .">41,  84  Am.  Dec.  500;  Alairty  v.  East- 
ridfre,  67  lud.  211;  Hushes  v.  Wilkinson,  37  Miss.  491;  Darlington  v. 
Spoakman,  9  Watts  »fc  S.  182;  Jonness  v.  Lapeer  CircuiT  Court,  42 
Mich.  469. 

•"••»»  Stewart  v.  Nuckolls,  15  Aln.  2:51,  ."0  Am.  Dec.  127;  «U-aham  v. 
Chandler,  15  Ala.  345;  Brown  v.  I'arker,  15  111.  309;  Pickett  v.  Hart- 


135  ISSUING  THE  ORIGINAL  EXECUTION.  §  35 

ute,  execution  after  the  death  of  plaintiff  may  issue 
in  the  same  manner  and  with  the  same  effect  as  thouj^h 
he  were  still  livinj^-;  '"^^^  and  in  some  .other  states  the 
death  of  a  sole  plaintiff  does  not  render  a  scire  facias 
necessary.'"^  The  issuing  of  executions  against  soh; 
defendants,  bearing  date  after  theii-  death,  has  alsD 
given  rise  to  divci-se  (h^cisions;  but  upon  this  point 
the  authorities  are  much  more  unevc  nly  divided  than 
upon  that  arising  where  execution  has  issued  after  th* 
death  of  a  sole  plaintiff.  Some  of  the  authorities  deny 
that  the  death  of  the  defendant  is  an  extinguishment 
of  the  power  to  issue  execution,  and  afftrm  that  a  writ, 
thereafter  issued,  without  revivor  of  the  judgment, 
though    voidable,    is   not    void.^"*^     These    authorities, 

sock,  15  111.  27U;  Latlin  v.  Ilorriugtun,  1(J  III.  302;  .Meyer  v.  Mintonye, 
lOG  111.  414;  Moryau  v.  Ta3'lor,  38  N.  J.  L.  317;  Duubam  v.  Bentley, 
103  Iowa.  13G. 
3*1  Holmes  v.  Mcliitloe,  20  Wis.  007. 

342  lu  Keutucky,  as  soon  as  au  administrator  or  executor  of  de- 
ceased iilaiutift"  is  appointed,  the  clerk  may  issue  execution,  making 
indorsement  showing  the  change  in  the  parties.  Morgan  v.  Winn, 
17  B.  Mon.  244;  Venable  y.  Smilli,  1  Duvall,  IS).").  In  New  York, 
"prior  to  ISOO,  if  a  plaintiff  died  after  judgment  in  his  favor  and 
before  execution  issued,  no  execution  issued  upon  the  application 
of  his  personal  representatives,  and  the  remedy  was  not  by  execu- 
tion, but  by  au  action  in  the  nature  of  scire  facias,  under  section 
428  of  the  code.  See  Ireland  b.  Litchfield.  22  How.  Pr.  178,  8  Bosw. 
034:  .lay  v.  Marlin.  2  Duer,  0.")4;  Wlieeler  v.  Dakin,  12  How.  Pr.  ,'>37: 
Bellinger  v.  Ford.  21  Barb.  311;  Thurston  v.  King,  1  Abb.  Pr.  120; 
Nims  V.  Sabine,  44  How.  I*r.  2.j2.  But  since  the  amendment  of  sec- 
tion 283  of  the  code  in  1800,  the  personal  representatives  of  a  de- 
cea.sed  judgment  creditor  have  all  the  rights  and  remedies  by  exe- 
cution which  the  creditor  had  while  living."  4  Wait's  Pr.  7f.  See 
also,  Civ.  Code  of  Ala..  1880,  sec.  292.">;  Starr  &  Curtis'  Ann.  111. 
Stats..  2d.  ed.,  p.  237U.  par.  37;  Iowa  Code,  1897.  sec.  4007;  Rev. 
Stats.  Mo.,  1880,  sec.  0023;  Gaston  v.  White.  40  Mo.  480;  Fowler  v. 
Burdett.  20  Tex.  .34;  Thomp.son  v.  Ross.  20  Miss,  liis;  Landes  v. 
Perkins.  12  Mo.  2.38;  Rooks  v.  Williams.  13  I.a.  Ann.  .374;  Trail 
V.  Snoufl"er.  0  Aid.  308;  Darlington  v.  Speakman.  !»  Watts  &  S.  182. 

343  Drake  v.  Collins,  5  How.  (Miss.)  2.")0:  Shelton  v.  Hamilton.  23 
Miss.  497,  57  Am.  Dec.  149;  Hodge  v.  Mitchell.  27  Miss.  ."t^4.  01  Am. 
Dec.  524;  Hughes  v.  Wilkinson,  37  Miss.  491;  Wight  v.   Wallbaum, 


§  35  ISSUING  THE  ORIGINAL  EXECUTION.  136 

while  sustainable  on  principle,  are  borne  down  by  the 
weight  of  opposing  authority.^**  The  reason  why  at 
the  common  law  it  was  insisted  that  upon  the  death 
of  a  sole  plaintiff  or  a  sole  defendant,  no  execution 
ought  to  issue  without  some  further  proceeding,  was, 
it  was  supposed  that  a  new  person  had,  by  such  death, 
become  interested  in  the  judgment,  and  therefore  some 
j)roceecling  should  take  place  to  bring  him  before  the 
court.  Hence,  it  was  held  that  where  a  plaintiff  had 
assigned  his  judgment  and  afterward  died,  it  was  not 
necessary  to  prosecute  any  proceedings  for  a  revivor, 
and  that  a  writ  properly  issued  after  his  death  with- 
out such  revivor,  ''^'^  but,  on  the  other  hand,  it  was 
also  held  that  if,  after  such  assignment,  the  assignee 
died,  a  writ  issued  after  such  death,  but  in  the  name  of 
Ihe  plaintiff,  was  regular."^"*^ 

The  common-law  rule  respecting  the  issuing  of  writs 
of  execution  after  the  death  of  a  sole  plaintiff  or  de- 
no  m.  554;  Elliott  v.  Knott,  14  Md.  121,  74  Am.  Dec.  519;  Butler  v, 
llaynes,  3  N.  H.  21;  Speer  v.  Sample,  4  AVatts,  367;  Harrington  v. 
O'Reilly,  9  Smedes  &  M.  216,  48  Am.  Dec.  704;  Taylor  v.  Snow,  47 
Tex.  4(52,  26  Am.  Itep.  311;  Cain  v.  W^oodward,  74  Tex.  549. 

344  Massie's  Heirs  v.  Long,  2  Ohio,  288,  15  Am.  Dec.  547;  Samuel 
V.  Zacliery,  4  Ired.  377;  Cartuey  v.  lieed,  5  Ohio,  221;  Houston  v. 
('liilders,  24  La.  Ann.  472;  Beach  v.  Dennis,  47  Ala.  202;  Lucas  v, 
I'rice.  4  Ala.  079;  Collier  v.  Windham,  27  Ala.  291,  62  Am.  Dec.  767; 
Whittock's  Admr.  v.  Whittock's  Creditors,  25  Ala.  543;  Gwynn  v. 
Latimer,  4  Yerg.  22;  Erwin's  Lessee  v.  Dundas,  4  How.  58;  Mitchell 
V.  St,  Maxent,  4  Wall.  237;  Whitehead  v.  Cummins,  2  Cart.  58;  State 
V.  Michaels,  8  Blackf.  430;  Hildreth  v.  Thompson.  16  Mass.  191; 
I'ickett  V.  Hartsock.  15  111.  279;  Wallace  v.  Swinton,  64  N.  Y.  188; 
Meyer  v.  Hearst,  75  Ala.  390;  Smith  v.  Reed,  52  Cal.  345;  Cunning- 
ham V.  Burk,  45  Ark.  207;  Williams  v.  AVeaver,  94  N.  C.  134;  Bull  v. 
Gilbert,  79  Iowa,  547;  Boyle  v.  Maroney,  73  Iowa,  70,  5  Am.  St. 
Rep.  657;  Halsey  v.  Van  Vleet,  27  Kan.  474;  Davis  v.  Young.  2 
Monr.  60;  Hardin  v.  McCvanse,  53  Mo.  255;  Prentiss  v.  Boyden.  145 
N.  Y.  342;  Bynum  v.  Goran,  9  Tex.  Civ.  App.  559;  Pickett  v.  Rich- 
ardson, 6  Lea,  49. 

345  Harris  v.  Frnuk,  29  Kan.  200. 
«*6  Brown  v.  Gill,  49  Ga.  549. 


137  ISSUING  THE  ORIGIN' AL  i:\K(  f  1 JOX.  §.35 

fondant  lias  been  supplanted  or  iiKxlifKMl  b}'  statute 
in  most  of  the  states.  Where  it  is  the  ]»biintiff  who 
has  died,  his  a<lniinistrator  or  executor  is  generally 
entitled  to  the  writ  without  first  pr(jsecuting  a  seire 
facias  or  any  i»roceeding  analogous  thereto,  though 
in  some  of  the  states  the  fact  of  his  appointment  is 
required  to  be  disclosed  to  the  court  from  which  the 
writ  issues,  either  by  some  motion  or  by  filing  a  copy 
of  Utters  testamentary  or  of  administration,  or  of  the 
order  making  the  appointment.^*''  It  would  seem 
that,  under  statutes  of  this  character,  if  a  writ  were 
taken  out  by  an  executor  or  administrator,  but  with- 
out complying  with  some  prescribed  formality,  it 
would  be  irr.egular  merely  and  not  void. 

If  it  is  the  defendant  who  dies,  then  his  estate 
usually  falls  within  the  jurisdiction  of  the  surrogate 
or  probate  courts.  In  some  of  the  states,  writs  of  exe- 
cution, notwithstanding  the  jurisdiction  of  these 
courts,  may  issue  upon  a  judgment  against  a  decedent 
without  any  formal  revivor  by  scire  facias;  but  to  the 
oxercise  of  this  right  it  is  generally  necessary  that 
some  motion  be  made  and  some  order  procured,  either 
in  the  court  wherein  the  judgment  was  rendered  or 
in  that  having  jurisdiction  of  the  estate  of  the  de- 
<.'edent,  and  even  then  the  writ  is  commonly  restricted 
to  judgments  constituting  liens  against  the  property 
of   the  deceased    judgment  debtor  in  his    life! i me.''*"* 

3*1  Daisy  Roller  Mills  v.  WHid,  G  N.  Dak.  317;  White  v.  Socor.  5S 
Iowa,  533;  Morgan  v.  AViini.  17  B.  Mon.  2.33;  Tenable  v.  Smitli,  1 
Duv.  19G;  Freeman  v.  Dutclier,  15  Abb.  N.  C.  431;  Fitts  v.  I)avi.<.  42 
111.  391;  Brown  v.  Parker,  15  III.  301;  Mavity  v.  Eastridgo,  G7  Intl. 
211;  Ariustroug  v.  McLaughlin,  49  lud.  370;  Scott  v.  Lyons,  59  Tex. 
593. 

348  Alsop  V,  Cowan,  GG  Miss.  451;  Kerr  v.  Krouder.  2S  ITun.  452; 
I>uell  V.  Alvord.  41  Hun.  190;  Bower  v.  llolladay,  IS  Or.  491;  Bar- 
rett V.  Furnish,  21  Or.  17. 


§  -80  ISSUING  THE  ORIGINAL  EXECUTION.  13S 

The  tendency  of  legislation  upon  this  subject,  however, 
is  to  require  all  claims  against  a  decedeut  to  be  pre 
sented  to,  and  acted  upon  by,  the  court  having  juris- 
diction of  his  estate,  and  to  allow  it  to  tak;'  whatever 
measures  may  become  necessary  for  their  satisfaction. 
To  this  end  the  writ  of  execution  is  generally  wholly 
diMiicd,  especially  where  no  lien  existed  against  the 
property  of  the  decedent.'^-**-*  Under  these  statutes,  as 
the  right  to  execution  terminates  absolutely  upon  the 
death  of  the  judgment  debtor,  and  its  subsequent  is- 
suing could  not  be  authorized  were  it  applied  for,  it 
must  follow  that,  if  issued,  it  is  void,  and  every  seizure 
or  sale  thereunder  is  invalid.^"^ 

§  36.  Issue  after  Death  of  One  of  Several  Plainfffs 
or  Defendants. — We  shall  next  consider  the  effect  of 
the  death  of  one  of  several  defendants,  or  of  one  of 
several  plaintiffs,  after  judgment,  and  before  the  date 
at  which  the  execution  is  issued  or  tested.  Where 
counsel  insisted  that  ^'w^here  there  are  two  or  more 
judgment  creditors,  and  before  execution  issues  one  of 
them  dies,  the  survivors  are  put  to  their  scire  facias 
before  they  can  have  execution  upon  their  judgment,'' 
the  court  replied  that  "no  authority  has  been  produce<l 
in  support  of  this  principle,  but,  on  the  contrary,  the 
course  of  the  boohs  shows  that  the  proper  mode  of 
proceeding  in  such  case  would  be  to  take  out  the  exe- 
cution conformed  to  the  judgment,  in  the  name  of  all 
the  creditors,  without  regarding  the  death  of  any  one." 

349  Powell  V.  Macon,  40  x\rk.  TAl;  Byrnes  v.  Sexton,  G2  Minn.  135: 
Brown  v.  Woody,  04  Mo.  547;  Cowles  v.  Hall.  113  N.  C.  350;  Sawyers 
V.  Sawyers.  03  N.  C.  321;  Bower  v.  Holladay,  18  Or.  491;  Fowler  v. 
Mickley,  30  Minn.  28. 

350  Boylo  V.  Marouey,  73  lowa^  70,  5  Am.  St.  Kep.  G57;  Code  Ala,» 
sec.  2880,  ed.  1886. 


139  ISSUING  THE  ORIGINAL  EXECUTION.  §  .SO 

Probably,  however,  in  a  case  like  the  present,  on  su{^- 
gestion  made  to  the  court  of  the  death  of  one  of  the 
creditors  in  a  judgment,  where  the  interest  survivi'd. 
after  judj;inent  and  before  the  issuing  of  an  ex(  cuticjii, 
the  execution  would  be  ordered  to  issue  in  the  name 
of  the  survivor  only.*'*^^  A  judgment  recovered  in 
favor  of  two  or  more  persons  would,  on  the  death  of 
one  or  more,  become  vested  in  the  survivor  or  surviv- 
Qj.g  3r»a  ^,|j^  would  be  entitled  to  issue  execution  or  to 
maintain  an  action  on  the  judgment.  The  death  of 
part  of  the  plaintiffs  introduces  no  new  parties  to  the 
record,  and  therefore  creates  no  necessity  for  a  revivor 
by  scire  facias.  The  general  rule  in  regard  to  revivor 
is,  that  it  is  indispensable  whenever  a  new  party  is 
to  be  charged  or  benefited  by  the  judgment.  ''Where 
any  new  person  is  either  to  be  better  or  worse  by  the 
execution,  there  must  be  a  scire  facias,  because  he  is 
a  stranger,  to  make  him  party  to  the  judgment,  as  in 
case  of  executor  and  administrator;  otherwise,  where 
the  execution  is  neither  to  charge  nor  benefit  any  new 
party,  as  in  this  case,  where  there  is  a  survivorship; 
for  there  is  no  reason  why  death  should  make  the  con- 
dition of  the  survivors  better  than  before,"  ^'"^ 

When  one  of  several  judgment  defendants  dies,  sat- 
isfaction may  be  sought  solely  by  seizing  the  persons 
or  levying  on  the  personal  estate  of  the  survivors,  in 
which  cases  no  scire  facias  is  needful  to  authorize  the 

351  H.imilton  v.  Lj'man,  9  Mass.  18;  Bowdoin  v.  Jordan,  9  Mass. 
160;  Cushiuaii  v.  Carpenter,  8  Cush.  388;  Withers  v.  llarris,  Ld. 
Rayni.  808:  Howell  v.  EUlridge,  21  Wend.  078. 

302  Freeman  ou  Cotenancy  and  Partition,  sec.  oG2. 

853  Pennoir  v.  Brace,  1  Salk.  319;  S.  C,  Pennoir  v.  Brace,  Ixi. 
Raym.  244;  Mitchell  v.  Smith,  1  Litt.  243;  Johnston  v.  Lynch,  3 
Bibb,  337;  Berry  hill  v.  Wells,  5  Binn.  5tJ. 


§  3G  ISSUING  THE  OUIUINAL  EXKCUTION.  140 

issue  of  executiou.^^*  But  it  is  otherwise  if  the  heir 
of  the  deceased  is  to  be  pursued.^*®^  In  order  that  the 
execution  may  couforiu  to  the  judgment,  it  issues 
against  all  the  defendants,  altliough  it,  for  all  prac- 
tical purposes,  amounts  to  no  more  than  an  execution 
against  the  survivors.  Under  the  common-law  system 
of  procedure,  a  certain  kind  of  writs  issued  against 
the  persons  of  the  defendants,  another  kind  against 
the  personal  estate  of  defendants,  and  still  another 
kind  was  necessaiy  to  authorize  satisfaction  to  be 
made  out  of  their  real  estate.  The  two  former,  being 
personal  in  their  nature,  could  issue  after  the  death 
of  one  of  the  defendants  without  any  revivor.  But 
with  the  latter  the  rule  was  otherwise.  If  an  elegit 
issued  it  must  have  been  against  both  the  defendants, 
to  be  executed  on  the  lands  of  both.  Each  defendant 
had  the  right  to  insist  that  one-half  of  the  land  of  his 
codefendant  be  extended,  in  order  that  the  burden 
might  be  lighter  on  him.  "But  if  one  defendant  died 
before  execution  issued,  the  lands  descended  and  the 
title  vested  in  the  heir.  He  had  the  right  to  show 
cause  (as  he  had  never  had  a  day  in  court)  why 
the  judgment  was  not  a  charge  on  his  land,  and  there- 

354  Day  V.  Rice,  19  Wend.  (>44;  Cheatham  v.  Brien,  3  Head,  553; 
Oaruaban  v.  Brown..  6  Blackf.  93;  Johnston  v.  Lynch,  3  Bibb,  334; 
Wade  V.  Watt,  41  Miss.  248;  Howell  v.  Eldridge,  21  Wend.  G78; 
'1  hompson  v.  Bondurant,  15  Ala.  346,  50  Am.  Dec.  13G;  Payne  v. 
Payne,  8  B.  Mou.  392;  Martin  v.  Branch  Banlv,  15  Ala.  587,  50  Am. 
Dec.  147;  Hildretli  v.  Thompson,  16  INIass.  103.  note;  Dickinson  v. 
Bowers.  7  Baxt.  307;  Fabel  v.  Boykin.  55  Ala.  ;'.83;  Reed  v.  Gai-field, 
15  111.  App.  290;  Holt  v.  Lynch,  18  W.  Va.  .567;  >Velch  v.  Battern,  47 
Iowa,  148;  Sheetz  v.  Wynkoop,  74  Pa.  St.  198;  Chandler  v.  Hudson's 
Exrs.,  11  Tex.  32. 

355  Thus,  in  Pennoir  v.  Brace,  1  Salk.  319.  "Holt.  C.  .L.  held  that 
a  capias  or  fi.  fa.,  being  in  the  personalty,  might  survive,  and 
might  be  sued  against  the  survivors  without  a  scire  facias;  other- 
wise of  an  elegit,  for  there  tlie  heir  is  to  be  contributory."  Blanks 
V.  Rector,  24  Ark.  496,  88  Am.  Dec.  780. 


141  ISSUING  THE  ORIGINAL  EXECUTION.  §  36 

fore  a  notice  or  scire  facias  must  issue  to  him  before 
his  lands  could  be  taken  in  execution.  The  lands  of 
the  surviving  defendant  being  chargeable  jointly  with 
the  lands  of  the  deceased  defendant,  and  he  having 
tlie  right  to  insist  that  this  charge  should  be  equally 
divided  between  them,  the  plaintiff  in  execution  could 
not  extend  his  land  witliout  a  sci.  fa.  If,  therefore, 
the  goods  of  the  survivor  were  not  sufficient  to  satisfy 
the  debt,  the  plaintiff  could  not  proceed  by  his  writ 
of  elegit;  neither  against  the  heir  of  the  deceased  de- 
fendant, because  he  was  entitled  to  have  a  day  in  court; 
or  against  the  surviving  defendant,  because  he  had 
the  right  to  sh(>w  tliat  the  land,  descended  to  the  heir 
of  his  codefendant,  was  jointly  liable,  with  his  own, 
to  pay  and  satisfy  the  charge.  Hence  arose  the  neces- 
sity of  a  sci.  fa  against  the  surviving  defendant,  be- 
fore his  lands  could  be  taken  in  execution."  ^^^  In  the 
United  States,  the  elegit  has  fallen  into  disuse,  even 
in  those  states  where  it  was  once  employed. 

An  execution  against  two  or  more  defendants  may 
be  levied  upon  the  real  as  wn^ll  as  upon  the  personal 
estate  of  either;  and  there  is  no  provision  of  law  un- 
der which  a  defendant  can  compel  an  execution  to  be 
levied  on  the  real  estate  of  his  codefendant  as  well 
as  upon  his  own.  But  in  some  cases  the  difference 
between  the  manner  in  which  real  estate  is  subjected 
to  execution  under  our  statutes  from  that  under  which 
it  was  so  subjected  under  the  English  statute  has  been 
overlooked;  and  it  has  therefore  been  held  that  an  exe- 
cution cannot  be  levied  on  the  real  estate  of  the  sur- 
viving defendant  until  there  has  been  a  scire  facias 
against  the  heirs  of  tlie  deceased  codefendant;  and 
that,  if  so  levied,  the   levy  and  sale  are  unauthorized 

«06  Martin  v.  Branch  Bank,  15  Ala.  r.94,  50  Am.  Dec.  147. 


§  36  ISSUING  THE  ORIGINAL  EXECUTION.  142 

and  yoid.^^'  But  we  think  tliat  the  reasoning  of 
Judge  Dargan,  in  pronouncing  the  opinion  of  the  su- 
preme court  of  Alabama,  sufficiently  demonstrates 
that  these  cases  ought  not  to  be  followed.  He  said: 
''Under  our  statutes,  judgments  are  joint  and  several, 
and  executions  may  be  levied  on  the  lands  of  one  of 
the  defendants  alone  without  any  levy  on  the  lands 
of  the  other,  as  at  the  common  law  they  could  be 
levied  on  the  goods  of  one  alone,  notwithstanding  the 
other  had  goods  liable  to  execution.  The  decisions, 
therefore,  of  the  English  courts,  under  their  statute, 
ought  not  to  be  adopted  here,  as  ours  is  entirely  differ- 
ent in  its  legal  consequences,  and  places  lands  on  the 
same  footing  with  personal  property  in  reference  to 
the  payment  of  judgments;  that  is,  they  may  be  abso- 
lutely sold  under  the  same  process,  and  a  perfect  title 
passed  to  the  purchaser;  and  the  land  of  one  may  be 
sold,  though  no  levy  is  made  on  that  of  the  other.  It 
thus  being  the  right  of  plaintiff  to  sell  the  land  of  one, 
without  reference  to  the  other,  as  at  common  law  he 
could  sell  the  goods  of  one  without  making  any  levy 
on  the  goods  of  the  other,  I  cannot  myself  see  any  rea- 
son for  a  sci.  fa.  against  a  surviving  defendant,  for 
it  would  answer  no  purpose,  and  would  not  benefit 
liim.  The  question  here  raised  has  never  before  been 
made  in  this  court,  and  we  feel  bound  to  decide  it  upon 
our  own  statutes;  and  we  believe  that  a  just  construc- 
tion of  them  warrants  us  in  saying  that  the  lands  of 
a  survivor  may  be  sold  under  execution  issued  after 
the  death  of  a  codefendant,  without  a  scire  facias."  ^*^ 

357  Woodcock  V.  Benuet,  1  Cow.  738,  13  Am.  Dec.  568;  Erwia's 
I-«essee  v.  Dundas,  4  How.  77;  Banks  v.  Eector,  24  Ark.  49G,  88  xVm. 
Dec.  780. 

■558  Martin  v.  Branch  Bank.  1.")  Ala.  594;  50  Am.  Dec.  147;  Hardin 
v.  McCansc,  ."):'.  Mo.  2"r,  Wade  v.  Watt.  41  Miss.  248:  Christ  v.  Flau- 
iiagaii,  23  Colo.  140;  Iteed  v.  Garfield,  15  111.  App.  200. 


143  ISSUING  TUE  ORIGINAL  EXECUTION.  §  37 

§  37.  Abatement  of  Writ  by  Death  of  a  Party.— We 
liave  already  stated  that  the  death  of  a  plaiutill,  or 
of  a  defendant,  subseiiuently  to  the  teste  of  an  exe- 
cution, had  no  other  effect  than  if  such  death  had  oc- 
<  urred  subsecjuentlv  to  the  actual  issuing  of  the  writ. 
We  shall  now  consider  whether  the  death  of  a  fjlain- 
tiff  or  defendant  had  any  effect  on  an  execution  pre- 
\  iously  issued,  and  if  so,  in  what  cases  and  to  what 
extent.  The  coniiuon-law  rule,  in  the  event  of  the 
<]eath  of  a  plaintiff,  as  thus  expressed  and  explained 
in  an  early  case,  is  sustained  by  all  the  authorities: 
"There  is  a  difference  betwixt  a  judicial  writ  after 
judgment  to  do  execution,  and  a  writ  original;  for  the 
writ  judicial,  to  make  execution,  shall  not  abate,  nor 
is  abatable,  by  llie  death  of  him  who  sues  it;  as  it  is 
the  common  course  of  a  capias  ad  satisfaciendum,  or 
a  fieri  facias,  upon  judgment  issueth,  the  sheriff  shall 
execute  it,  although  the  party  who  sued  it  died  before 
the  return  of  the  writ;  and  although  the  death  be  be- 
fore or  after  execution,  if  it  be  after  the  teste  of  the 
w  rit,  it  is  well  enough;  as  where  a  capias  ad  satisfaci- 
endum is  sued,  and  the  party  taken,  before  or  after 
the  death  of  him  who  sued  it,  and  before  the  day  of 
return;  or  if  a  fieri  facias  be  awarded,  and  the  money 
levied  by  the  sheriff,  and  the  plaintiff  dies  before  the 
I'eturn  day  of  the  writ,  yet  the  executor  or  his  admin- 
istrator shall  have  the  benefit  and  is  to  have  the 
money;  and  it  is  no  return  to  say  that  the  plaintiff  is 
dead;  and  therefore  that  he  did  not  execute  it."  **'^® 

359Massio's  lloirs  v.  Lone:,  2  Ohio.  287,  15  Am.  Dec.  547:  Win.ij:  v. 
Hnsspy,  71  Me.  ISG;  Becker  v.  Becker.  47  Barb.  498;  Fox  v.  Lamar. 
2  Brev.  417;  Cleve  v.  Veer,  Cro.  Car.  459;  Ellis  v.  Griffitli.  in  Mees.  & 
W.  lOG;  4  Dowl.  &  L.  279:  10  .Tur.  1014;  IG  L.  .T.  Ex.  Gt!;  Giesory  v. 
Cliadwell,  3  Cold.  390;  Clerk  v.  Withers,  6  Mod.  290;  11  Mod.  .35; 
r>ragner  v.  I^augmead,  7  Term  Kep.  20;  Nell  v.  Gaut,  1  Cold.  39G; 


§  37  ISSUING  THE  ORIGINAL  EXECUTION.  144 

When  a  writ  is  once  sued  out  against  the  personal 
property  of  the  defendant,  the  sherili"  need  not,  and  in 
fact  cannot,  take  any  notice  of  the  subsequent  death 
of  the  defendant.  From  its  teste  at  common  law,  and 
from  its  delivery  to  the  officer  under  statutes  where 
the  common-law  fiction  of  relation  to  the  day  of  teste 
has  been  abolished,  the  writ  is  deemed  to  be  in  process 
of  execution;  and  when  its  execution  is  commenced 
during  the  life  of  defendant,  either  in  fact  or  in  con- 
templation of  law,  it  must  proceed.  The  officer  may 
therefore  seize  the  chattels  of  the  defendant,  though 
they  have  come  into  the  possession  of  his  executor  or 
administrator,^*^^  It  is  difficult,  under  the  decisions,  to 
conclude  whether  the  right  to  proceed  under  an  execu- 
tion after  the  death  of  a  defendant  was  due  to  its  be- 
ing a  lien  on  his  property,  or  to  some  proceeding  hav- 
ing been  commenced  thereunder  to  enforce  its  satisfac- 
tion which  must  be  allowed  to  proceed  to  fruition  upon 
the  theory  that  the  right  to  proceed  is  dependent  upon 
the  lien  of  the  writ.  It  has  been  held  that,  though  the 
writ  is  tested  in  the  lifetime  of  the  decedent,  yet,  if  its 
lien  does  not  commence  until  it  is  delivered  to  the  sher- 
iff, then  that  officer  has  no  right  to  proceed  under  it^ 

Murray  v.  Buchanan,  7  Blackf.  549;  Clerk  v.  Withers,  Ld.  Raym. 
1073;  Thorough.tjoofl's  Case.  Noy,  73;  Commonwealth  v.  Whitney,  10 
Pick.  434;  Buckner  v.  Terrill.  Litt.  Sel.  Cas.  29,  12  Am.  Dee.  260; 
Gaston  v.  "White,  40  Mo.  48G;  BiseloAv  v.  Renker,  25  Ohio  St.  542. 
But  in  Kentucky,  the  writ  abates  unless  levied  or  replevied  In  plain- 
tiff's lifetime,  Wagnon  v.  McCoy,  2  Bibb,  198;  Huey  v.  Redden,  3 
Dana,  488;  Bristow  v.  Payton's,  Adrar.,  2  T.  B.  Mon.  91,  15  Am.  Dec. 
134;  Jones  v.  Newman,  36  Hun,  634. 

360  Parker  v.  Mosse,  Cro.  Eliz.  181;  Parsons  v.  Gill,  Ld.  Raym. 
695;  Eaton  v.  Southby,  Willes,  131;  Waghorne  v.  Langmead,  1  Bos. 
&  P.  571;  Huey  v.  Redden,  3  D.^na,  488;  Grosvenor  v.  Gold,  9  Mass. 
214;  Needham's  Case,  12  Mod.  -5;  Thompson  v.  Ross,  26  Miss.  200; 
Odes  V.  Woodward.  Ld.  Raym.  850:  Dodge  v.  Mack,  22  111.  95;  Ix)gs- 
don  V.  Spivey,  54  111.  104;  Craig  v.  Fox,  16  Ohio,  563;  Arnold  V- 
P^uller,  1  Ohio,  458. 


145  '  ISSUING  THE  ORKilNAL  KXECUl'KJX.  §  37 

thoiij^^li  tested  in  the  life  of  the  (lefeiulaut,  if  it  was 
Dot  delivered  until  afterward/"*^  and  if,  by  statute,  the 
writ  has  been  deprived  of  its  common-law  effect  of  im- 
posinj;  a  lien,  it  abates  on  the  death  of  the  defendant 
before  niakini;  any  levy  thereunder,'*"-  unless  it  is  is- 
sued upon  a  judgment  which  has  been  preceded  by  an 
attachment,  or  by  some  other  proceeding  creating  a 
lien  on  the  defendant's  property  in  his  lifetime.^**"* 

With  respect  to  the  real  estate  of  the  defendant,  the 
rule,  according  to  a  decided  i)reponderance  of  the  au- 
thorities, is  the  same  as  that  applicable  to  his  personal 
estate.  An  elegit  bearing  teste  in  the  defendant's  life- 
time may,  after  his  death,  be  extended  on  his  real  es- 
tate, and  the  same  is  true  of  any  other  writ,  so  tested, 
which  may  be  employed  to  makt^  real  estate  answer- 
able for  the  defendant's  debt."*"*  In  Kentucky,  the 
death  of  a  defendant  at  any  time  before  sale  abates  the 
execution  both  as  to  real  and  to  personal  estate;  but 
this  result  was  not  attained  in  that  state  through  any 
peculiar  interpretation  of  the  common  law.  It  was  ow- 
ing to  a  construction  giv(  n  a  local  statute.^^''  In  New 
York,  it  has  been  held  that  the  real  estate  of  the  de- 
fendant cannot  be  sold  under  an  execution  tested  be- 

361  People  V.  Bradley,  17  111.  4S.j. 
361!  .lewott  V.  Smith,  12  Mass.  309. 
3<i3  Clrosvcnor  v.  Gold,  i)  Mass.  214, 

364  Tidd's  Pr.,  lUlU;  Sprott  v.  Keid,  3  G.  Greene,  492,  5G  Aiu.  Dec. 
549;  Doe  v.  Heath,  7  Blackf.  loG;  Erwin's  Lessee  v.  Dundas,  4  How. 
76;  Bleecker  v.  Bond,  4  Wash.  C.  C.  G;  Doe  v.  Hayes,  4  Ind.  117; 
Hanson  v.  Barnes,  3  Gill  &  J.  3.j9,  22  Am.  Dec.  322;  Jones  v.  Jones, 
1  Bland,  443,  18  Am.  Dec.  327;  Mundy  v.  Bryan,  18  Mo.  29;  Den 
V.  Hillnian,  2  Halst.  180;  Aycock  v.  Harrison,  G5  N.  C.  8;  Hurt  v. 
Nave,  49  Ala.  459;  Davis  v.  Moore,  103  111.  445;  Barber  v.  I'eay.  31 
Ark.  392;  .lones  v.  Kay,  50  Ala.  599;  Unvls  v.  Coonil)s,  GO  Mo.  44. 

365  Huston  V.  D\incan,  1  Br.sh,  205;  Iloleman  v.  Iloleraan,  2  Bush, 
514;  Waj?non  v.  ISIcCoy,  2  Bibb,  198;  Bristow  v.  Payton,  2  T.  B.  Mon. 
91,  15  Am.  Dec.  134. 

Vol.  I.— 10 


§  37a  ISSUING  THE  ORIGINAL  KXECUriON.  146 

fore,  but  issued  after,  his  deatli.^^''  This  decision  is, 
we  think,  contraiy  to  the  Aveight  of  authority  upon  the 
subject,  but  it  is  in  harmony  with  those  decisions  which 
ground  the  right  to  proceed  upon  tiie  theory  that  it  is 
because  of  the  lien  created  in  the  lifetime  of  the  de- 
fendant, and,  therefore,  that,  in  the  absence  of  the  lien, 
there  can  be  no  such  right.  But  when  execution  has  in 
fact  issued,  and  the  sheriff  has  taken  stejis  for  its  en- 
forcement, it  is  settled,  even  in  New  York,  that  the 
death  of  the  defendant  cannot  arrest  the  process."*"' 
In  Texas,  executions  seem  to  abate  on  the  death  of  the 
defendant,  w^hether  levied  or  not,  and  to  be  thereafter 
regarded  as  absolutely  void.''*''^  In  Tenn{  ss  e,  the  posi- 
tion is  taken  that,  as  neither  the  issue  nor  the  levy  of 
an  execution  upon  real  property  defeats  the  title  of  the 
judgment  debtor,  it  descends  to  his  heirs-at-law,  and 
hence  that  no  further  proceeding  can  be  taken  after 
his  death  under  an  execution  issued  in  his  lifetime  and 
levied  upon  his  lands  without  first  iirosecutiug  a  scire 
facias  against  his  heirs.^***^ 

§  37  a.  Issuing  Executions  on  Decrees.— Where  a  de- 
cree is  for  the  payment  of  a  sum  of  money,  it  may  now, 
under  the  authority  of  various  English  and  American 
statutes,  be  enforced  by  the  same  writs  of  execution  as 
though  the  recovery  had   been   at    law  instead  of   in 

36C  Stymots  T.  r.rooks,  10  Woiul.  210. 

367  Wood  V.  Morehouse,  45  N.  Y.  373. 

388  Conkrite  v.  Hart,  10  Tex.  140;  Chandler  v.  Burdett.  20  Tex,  42; 
McMiller  V.  Butler,  20  Tex.  402;  but  the  authority  of  these  cases 
is  somewhat  shaken  in  Webb  v.  Mallard,  27  Tex.  80.  In  Taylor  v. 
Snow,  47  Tex.  402,  20  Am.  Hep.  311,  it  was  detorminod  that  a  sale 
could  not  be  collaterally  avoided  on  the  ground  1h;it  tlie  defendant 
died  before  the  rendition  of  llie  judgment  as  well  as  before  the  issue 
of  the  execution.     I)url)in  v.  Diirbiu,  71  111.  App.  ."il. 

•"■09  Rutherford  v.  Head,  0  Humph.  423;  ,  Overlou  v.  I'erkius,  10 
Yerg.   328. 


147  ISSUING  THE  ORIGINAL  EXECUTION.  §  37a 

equity.^'**  Tlie  issuiiijj;  of  these  writs  may  generally 
be  obtained  by  demanding  them  of  the  proper  officer  as 
soon  as  the  creditor  has  become  iMititled  to  immediate 
compliance  with  the  decree.  In  cases  not  provided  for 
by  these  statntes,  resort  must  be  had  to  other  modes  of 
enforcing  satisfaction.  Since  the  writ  of  execution  has 
become  obsolete,  it  is  incumbent  on  thi^  prevailing 
party  to  have  inserted  in  his  decree,  or  in  some  supple- 
mental decree,  a  clause  designating  the  time,  or  the 
time  after  the  service  of  such  decree,  within  which  the 
act  required  by  it  to  be  done  must  be  performed.  A 
copy  of  this  decree  must  then  be  i>vocured  and  served 
upon  the  defendant,  and,  in  England,  a  memorandum 
must  be  indorsed  thereon  to  the  following  effect:  "If 
you,  the  within-named  A  B,  neglect  to  obey  this  decree 
by  the  time  therein  limited,  you  will  be   liable  to  be 

370  Daniell's  CIi.  Pr.,  4tli  Am.  ed..  3042,  and  notes.  In  Florida, 
the  authority  to  issue  execution  on  ;i  decree  is  founded  on  rule  7 
of  the  rules  of  circuit  courts  in  suits  in  equity,  which  is  as  follows: 
"Final  process  to  execute  any  decree  may,  if  the  decree  be  solely 
for  the  payment  of  money,  be  by  a  writ  of  execution  in  the  form 
used  iu  the  circuit  courts  in  suits  at  common  law."  For  some  rea- 
son, which  the  court  failed  to  disclose,  and  which  we  can  neither 
conceive  nor  imagine,  this  rule  was  held  to  autliorize  the  issuing  of 
but  one  execution,  and,  in  the  event  of  the  issue  and  return  of  an 
execution,  to  leave  the  clerk  without  power  to  issue  any  alias  or  sub- 
sequent writ.  White  v.  Staley's  Exrs.,  21  Fla.  39G.  A  venditioni 
exponas  may  issue  when  the  sheriff  has  seized  goods  which  remain 
unsold  for  want  of  bidders.  If  he  has  gone  out  of  otfice  he  may  be 
compelled  to  proceed  to  sale  by  the  writ  of  distringas  nuper  vice- 
coniiteni.  Seton's  Forms  of  Decrees,  Judgments,  and  Orders.  4th 
ed.,  loGl.  It  is,  of  course,  essential  to  the  right  to  issue  execution 
on  a  de<;r€€  that  it  be  of  the  same  character  as  a  judgment  for 
the  payment  of  money,  or.  in  other  words,  tliat  the  relief  to  which 
the  party  has  been  adjudged  to  be  entiUed  is  the  payment  of  money. 
Hence  if  the  decree  is  that  the  defendant  execute  a  bond  and  mort- 
gage on  specified  real  property  for  a  sum  stated,  and  that  such 
property  be  subject  to  a  lien  for  such  sum,  the  court  cannot  amend 
tlie  decree  so  as  to  direct  that  execution  shall  issue  for  a  sale  of  the 
property  to  satisfy  such  amount.     Koberge  v.  "Wiuue,  75  Hun,  597. 


§  37a  ISSUING  THE  ORIGINAL  EXECUTION.  US 

arrested,  under  a  writ  of  attachment  issued  out  of  the 
hi<^h  court  of  chancery,  or  by  tlie  sergeant-at-arms  at- 
tending the  same  court;  and  also  be  liable  to  have  your 
estate  sequestered,  for  the  purpose  of  compelling  you 
to  obey  the  same  decree,"  ^^^  If  the  time  for  perform- 
ance is  fixed  by  the  decree,  the  service  of  the  copy  must 
be  made  before  such  time,  or  an  order  must  be  obtained 
and  served  enlarging  the  time  or  fixing  a  new  period 
for  such  performance.  The  service  of  the  copy  of  th<^ 
decree  must  be  personal,  unless  the  court  authorizes 
the  adoption  of  some  other  mode.  When  tlie  parly 
has  absconded,  or  cannot  be  found,  or  keeps  his  door 
locked,  the  court  will  order  substituted  service  upon 
his  solicitor.  A  decree  may  direct  the  sale  of  property, 
to  satisfy  a  lien  or  for  some  other  purpose,  in  which 
case,  in  the  absence  of  any  statute  to  the  contrary,  the 
commissioner,  or  other  officer  authorized  to  make  the 
sale,  "may  proceed  by  authority  of  the  decree  alone, 
without  any  order  of  sale  or  other  process.'^'^^  It  is 
usual,  in  most  of  the  states,  to  issue  upon  such  decrees 
what  are  commonly  called  orders  of  sale,  which  either 
recite  the  substance  of  the  decree  or  refer  to  an  an- 
nexed copy,  and  command  the  officer  to  execute  the 
decree.  The  decree  itself  must  be  regarded  as  of  para- 
mount authority.  Its  effect  cannot  be  limited  by  the 
order  of  sale,  or  impaired  by  v-ariances  and  other  de- 
fects therein,"''^^  nor  by  the  issuing  of  an  execution  in 
the  form  of  a  fieri  facias.'^'"* 

371  Daniell's  Ch.  Pr.,  4th  Am.  eel..  104.3;  Seton's  Forms  of  Decrees, 
Judgments,  and  Orders,  4th  ed..  1.^.5.5,  InOO. 

37::  .Johnson  v.  (>>lhy,  .^)2  Neb.  :]2~:  McKinley  etc.  Co.  v.  Ilamer,  52 
Neb.  701);  post,  §  47a. 

373  .Tarrett  v.  Hoover,  54  Neb.  C"). 

874  Mitchell  V.  Ringle,  151  Ind.  IG,  G8  Am.  St.  Rep.  212.  . 


149  ISSUING  THE  ORIGINAL  EXECUTION.  §  37b 

§  37  b.  Proceedings  to  Enforce  Decrees  by  Attach- 
ment and  Punishment  for  Contempt.— in  England,  the 
writ  of  Jittticbment  was  formerly  issued  by  the  clerk, 
npon  his  beinj;  satisfied  by  affidavit  of  the  due  service 
of  the  c()[)y  of  decree,  and  that  it  had  not  been  obeyed 
within  the  time  designated;  ^''''  but  we  belit've  it  is  now 
generally  the  practice,  both  in  that  country  and  in  the 
United  States,  not  to  issue  this  writ  except  upon  leave 
or  order  of  the  court;  and  that  this  order  is  not  issued 
until  the  party  alleged  to  be  in  contempt  has  had  no- 
tice of  the  application  therefor,  and  an  opportunity  to 
show  cause  why  he  should  not  be  proceeded  against  as 
one  guilty  of  a  contempt."'^  After  the  attachment 
issued,  the  defendant  was  arrested  thereunder  and 
lodged  in  prison  if  he  could  be  found,  and  this  impris- 
onment, where  it  was  possible  to  arrest  the  defendant, 
seems  to  have  been  a  prere(iuisite  to  further  proceed- 
ings against  him.^"  The  plaintiff  may,  if  he  chooses, 
leave  the  contumacious  defendant  in  prison  until  he 
purges  himself  of  his  contempt  by  performing  the  act 
required  of  him  and  paying  the  costs  of  the  contempt. 

By  the  ])ractice  generally  prevailing  in  the  United 
States,  if  a  party  is,  by  a  decree,  required  to  do  some- 
thing, a  demand  must  first  be  made  upon  him  that  he 
do  it,  and  he  cannot  be  regarded  as  in  contempt  until 
such  demand  has  been  made  upon  him  and  he  has  re- 
fused or    neglected  to    comply  therewith.^''**     If    one 

375  Danioll's  Ch.  I'r.,  4th  Am.  ed.,  1046. 

37G  Seton's  Forms  of  Decrees,  Judgments,  and  Orders.  4th  ed., 
1507;  Gates  v.  McDaniol.  3  Port.  356;  Androscosjrin  R.  R.  v..  Andro- 
scoggin R.  R..  49  Me.  392;  Ex  parte  Langdon.  25  Vt.  680;  Ex  parte 
Petrie.  3S   111.  49S:  AVightman  v.  Wightman,  45  lU.  167. 

«77  Kinsey  v.  Yardley,  Dkk.  265;  Danioll's  Ch.  Pr.,  4th  Am.  ed., 
1047. 

378  Haines  v.  People,  97  111.  HH;  Edison  v.  Edison.  56  Mich.  1S5; 
BufTum's  Case,  13  N.  H.  14;  Matter  of  Oekershauson,  59  Hun,  200; 
McCord  V.  Weaver,  11  Hun,  271. 


§  37b  ISSUING  THE  ORIGINAL  EXECUTION.  100 

has,  after  such  demand,  failed  to  comply  with  the  de- 
cree, or  if  the  decree  has  prohibited  him  from  doing 
something  and  he  has  nevertheless  done  it,  pi-oceedings 
are  ordinarily  commenced  by  an  affidavit  disclosing 
the  facts  which  it  is  claimed  establish  that  the  party 
thus  proceeded  against  has  been  guilty  of  a  con- 
tempt.^'^**  An  affidavit  is  not  the  exclusive  mode  of 
disclosing  such  facts;  they  may  appear  from  a  return 
made  by  some  officer  of  the  court,^**^  or  may  be  dis- 
closed in  some  other  mode/'^^^ 

Some  proceeding  must  be  taken  to  give  the  court  jur- 
isdiction over  the  party.  This  is  usually  by  the  issu- 
ing of  an  order  that  he  show  cause  why  an  attachment 
should  not  be  issued  against  him,  or  why  he  should  not 
be  punished  for  the  alleged  contempt."^-  The  better 
course  is  to  serve  this  order  on  the  party  personally.****'* 
It  may,  however,  be  served  upon  his  attorneys,^***  and 
the  court  may  authorize  other  modes  of  service,  as  by 
leaving^a  copy  at  the  party's  last  place  of  abode. ^''^ 

In  defense  the  accused  may  show  that  he  had  no  no- 
tice of  the  order  or  decree  which  he  is  accused  of  dis- 
obeying.^*^" To  avoid  this  defense,  it  is  usual,  before 
instituting  proceedings  for  contempt,  to  serve  a  copy 
of  such  order  or  decree,  but  this  is  generalh'  regarded 

37»w.vatt  V.  People,  17  Colo.  252;  State  v.  Heuthoin,  4t;  Kan.  613; 
In  re  Wood,  82  INlleh.  75;  Phillips  v.  Welch,  12  Nev.  158;  Clark  v. 
Biningor,  75  N.  Y.  344. 

380  Wilson  V.  Stale.  57  lud.  71;  Jordan  v.  Circuit  Court.  69  la.  177. 

381  State  V.  Frew,  24  W.  Va.  416,  44  Aru.  Rep.  257, 

382  Beck  V.  State,  72  Ind.  256;  Pittman  v.  Ilagins,  91  Ga.  167; 
Hawkins  v.  State,  125  Mo.  .570. 

383  Rapalje  on   Contempts,   §  104. 

384  Pitts  V.  Davison,  37  N.  Y.  2:?5;  Eureka  Lake  r.  Superior  Ct, 
66  Cal.  311;  Fisclior  v.  Raab,  58  How.   Pr.  221. 

385  Palmer  v.  Palmer,  28  Fla.  295;  Hollingsworth  v.  Duane.  Wal- 
lace, C.  C,  141. 

386  Lewis  V.  Singleton,  61  Ga.  104, 


151  ISSUING  THE  ORIGINAL  KXECUTION.  §  3<b 

as  unnecessary  if  the  defendant  was  present  in  court 
when  it  Avas  pronounced,  or  is  otherwise  shown  to  have 
had  artuiil  notice  tliereof  before  its  viohition.''"'^'  The 
defendant  will  not  be  punished  if  he  shows  that  he  has 
failed  to  comply  with  the  decree  through  his  inability 
to  do  so,  not  i>r()(liiced  by  his  own  fauit/''^^  The  de- 
fendant cannot  ordinarily  avail  himself  of  any  mere 
irre}j;ularity  or  error  in  the  order  or  decree  which  he 
has  disobeyed,  AMiile  it  remains  in  force,  he  can  ex- 
cuse his  disobedience  only  by  showing  thai  ilie  court 
did  not  have  authority  to  make  it,  or,  in  other  words, 
that  it  was  void.^^'*  To  insure  a  compliance  with  its 
decree  the  court  may  direct  the  imprisonment  of  the 
defendant  until  he  has  yielded  obedience  thereto,  un- 
less he  shows  such  obedience  to  have  become  impossl- 

Proceedings  to  punish  for  contempt  should  not  be 
employed  to  compel  an  obedience  to  a  judgment,  the 
effect  of  which  has  been  suspended  by  an  appeal  or 
writ  of  error.  A  judgment  was  entered  declaring  an 
election  of  directors  of  a  corporation  invalid  and  that 
certain  other  persons  were  elected  and  were  entitled 
to  such  offices.  The  court  pronouncing  the  judgment 
issued  an  order  against  the  defendant  to  show  cause 
why  he  should  not  be  punished  for  a  contempt  of  court 

887Tliebaut  v.  Canova.  11  Fla.  143;  O'Callaglian  v.  O'Callagban, 
G9  111.  352;  McDoniioU  v.  Henderson,  74  la.  tJlO;  Winslow  v.  Xayson, 
113  Mass.  411;  Having  y.  Kauffman,  13  N.  J.  Eq.  .307,  78  Am.  Doc. 
102. 

sssGalland  v.  CJalland,  44  Cal.  47o,  13  Am.  Kop.  1(;7;  Hull  v.  Har- 
ris, 45  Conn.  544;  Cowart  v.  Dnubar.  5G  CJa.  417;  Hogne  v.  Hayes, 
53  la.  377;  Boyett  v.  Vaiighan,  89  X.  C.  27;  Witter  v.  Lyon,  34  Wis. 
564. 

3S9  Wandliug  v.  Tliompson,  41  N.  .F.  li.  142;  People  v.  P>ergen,  53 
N.  Y.  404;  Kapalje  on  Contempts.  §§  16,  33.  117. 

300  Chapel  v.  Hull.  (>0  Mich.  1G7,  11  Am.  St.  Itep.  573;  Ex  parte 
Haley,  37  Mo.  App.  5G2. 


^  ;)7c  ISSUING  THE  ORIGINAL  EXECUTION.  152 

iu  preventing  tlie  plaintiff  from  taking  possession  of 
the  office  to  Avhieli  lie  had  been  declared  entitled.  It 
was  insisted  that  a  judgment  of  the  character  in  ques- 
tion was  self-execnting,  and,  though  appealed  from, 
continued  in  force  until  reversed  or  otherwise  vacated, 
and,  if  so,  that  the  defendant  was  guilty  of  contempt. 
The  appellate  court,  however,  decided  that  the  defend- 
ants, by  their  compliance  with  the  provisions  of  the 
statute  for  perfecting  their  appeal,  had  thereby  stayed 
all  further  proceedings  in  the  court  below  upon  the 
judgment  or  ordi  r  appealed  from;  that  the  effect  of  the 
appeal  was  to  leave  the  parties  in  the  same  position 
with  reference  to  the  rights  involved  in  the  action,  as 
they  were  prior  to  the  rendition  of  the  judgment,  and 
hence  that  the  court  had  no  power  to  punish  the  ac- 
cused for  disobeying  the  judgment  thus  suspended  by 
the  appeal."*"^ 

§  37  c.  Issue  of  Writ  of  Sequestration.--lt  may  hap- 
pen that  the  defendant  cannot  be  found  and  arrested, 
or, being  found  and  put  in  prison,  remains  there  with- 
out obeying  the  decree.  In  this  event,  a  further  remedy 
of  the,  complainant  is  by  the  writ  of  sequestration.*"*^ 
When  it  appears  that  the  defendant  is  out  of  the  juris- 
diction of  the  court,  this  writ  may  issue  without  first 
proceeding  to  sue  out  an  attachment.*"*^  Formerly,  on 
the  return  of  non  est  inventus  to  the  writ  of  attach- 
ment, the  plaintiff  might  have  "an  order  for  the  ser- 
geant-at-arms,   and    such   other    process    as   he  was 

391  Foster  v.  San  Francisco  Snpr.  Ct.,  115  Cal.  279. 

302  Ross  V.  Colville,  3  Call,  382;  8tli  Equity  Rule  of  United  States 
Courts;  Roberts  v.  Patton,  18  Mo.  481. 

393  Re  East  of  England  Bank,  10  Jur.,  N.  S.,  1093,  2  Drew.  &  S. 
284.  Writ  of  sequestration  may  now  issue  in  Eugland  after  ser- 
vice of  a  copy  of  the  decree.  Seton's  Forms  of  Decree,  etc..  4th  ed., 
1576;  Sprunt  v.  I'ugh,  7  Ch.  Dec.  507;  Sykes  v.  Dyson.  9  Eq.  228. 


153  ISSUING  THE  ORIGINAL  EXEe  UTJON.  §  37c 

formerly  oiititled  to,  upon  a  return  nou  est  inventus, 
made  by  the  conjniissioners  named  in  a  eommission  of 
rebellion,  issued  for  the  nonperformance  of  a  decree  or 
order."""*    The  writ  of  setiuestration   issues  in   Eng- 
land, upon  motion,  as  of  course,  wlien  it  a])pears  that 
the  defendant  against   whom    the   attachment    issued 
cannot  be  found  within  the  jurisdiction  of  the  court,  or, 
being   found,  is   imprisoned  and    neglects  to   obey  the 
decree."^'*    In  some  of  the  oases  it  is  said  that  notice  of 
the  motion  should  be  given,  if  it  is  intended  to  execute 
the   sequestration    against    lands,  because    the    court 
might  limit  it  to  certain  lands.'^""    Even  when   sought 
against  lands,  the  want  of  notice  was  said  not  to  be 
an  objection  to  the  application,  if  the  defendant   had 
not  appean^l  in  the  cause.'***'    It  may  issue  against  an 
infant,'"***  and  because  of  the  nou])erformance  of  every 
<'onceivable  kind  of  decree.     Hence  it  may  issue  where 
defendant  refuses  to    produce  deeds,"****"  or  to    deliver 
property  to    a   receiver,^""  or  to    perform    a   personal 
duty.^"^    In  ^Fai'yland,  the  plaintiff  seems  by  statute  to 
be  entitled  to  this  writ  without  resorting  to  an  attach- 
ment, or  even  serviiig  any  copy  of  the  decr(M\  or  mak- 
ing any  demand  for  its  performance.  *""    In  Pennsylva- 
nia, a  writ  of  sequestration  is  ''the  execution  process, 
where  judgment  has  been  obtained    against    corpora- 
tions, except  counties  and  townships,  or  others  of  like 

394  Daniells  Ch.  Pr.,  4th  Am.  ed.,  1048;  Hook  v.  Itoss,  1  Hen.  & 
M.  320. 

395  Roberts  v.  Stoner,  18  Mo.  481. 

396  Welsh  V.  Welsh,  2  Ir.  Eq.  300;  Mouk  v.  Lawlor,  1  Jones  Ir. 
554. 

39T  Edwards  v.  Edwards,  >3  Ir.  Eq.  502. 

398  Anonymous,  2  Ch.  Cas.  163. 

399  Trig  V.  Trig.  Dick.  325. 

400  People  V.  Rogers,  3  Paige,  103. 

«>i  Guavers  v.  Fonntaine.  2  Freeni.  99. 
■*02  Kelglder  v.  Ward,  8  Md.  254. 


§  37c  ISSUING  THE  ORIGINAL  EXECUTION.  154 

public  municipal  character."  It  is  demandable  of  right, 
and  may  therefore  issue  without  notice.^**''  The  writ  of 
sequestration  was  irregular  if  issued  at  any  time  after 
the  death  of  the  defendant,  and  was  liable  to  be  va- 
cated.^"* Where  there  is  any  change  of  parties  after 
judgment,  leave  must  be  obtained  for  the  issue  of  any 
writ  of  sequestration.^"^  The  sequestration  is  a  per- 
sonal proceeding,  and  after  the  death  of  the  party  in 
default  it  cannot  be  revived  against  his  heir  unless  the 
decree  is  for  the  land,  or  for  the  performance  of  a  cove- 
nant in  which  the  heir  is  bound;  but  it  may  be  revived 
against  the  defendant's  personal  representative  if  the 
decree  is  for  a  mere  personal  demand.'**^^  The  seques- 
trators may,  as  such,  have  come  into  the  possession  of 
real  or  personal  property,  or  both,  wiiich  they  are  au- 
thorized to  sell  or  to  hold  for  the  purpose  of  producing 
a  satisfaction  of  the  decree.  Where  such  is  the  case,  the 
death  of  the  defendant  does  not  necessarily  relieve 
such  property  from  liability,  nor  deprive  the  sequestra- 
tors of  their  authority  to  proceed  as  if  he  were  alive. 
Hence  a  motion,  in  such  a  case,  to  discharge  the  seques- 
trators because  of  the  death  of  the  defendant  may  be 
denied.'***''  In  order  to  make  the  w^rit  of  sequestration 
effective,  it  may  be  necessary  to  apply  to  the  court  from 
time  to  time  for  further  authority.  Thus  while  the  se- 
questrators may  not,  by  virtue  of  the  writ  alone,  sell 
any  property ,■*•***  they  may  be  authorized  to  sell  per- 

403  Reid  V.  N.  W.  Il'.v.  Co.,  32  Ta.  St.  2."!. 

404  Chick  V.  Smith,  8  Dowl.  P.  C.  337,  4  .Tur.  8G. 

405  Seton's  Forms  of  Decrees,  etc.,  4th  ed..  ].o78;  Cmilston  v.  Gardi- 
ner, 2  Ch.  Cas.  43;  Burdett  v.  Rocklcy,  1  Vern.  58.  118. 

406  Danieirs  Ch.  I'r..  4ih  Am.  cd.,  lO.'O,  1033;  Wharara  v.  Brou.irh- 
ton,  1  Ves.  182. 

407  iTydo  V.  Grceuhill.  1  Dick.  lOG;  Tratt  v.  loman,  L.  K.  43  Ch. 
D.  17.'j. 

408  Shaw  V.  Wright,  3  Ves.  22. 


155  ISSUING  THE  ORIGINAL  EXECUTION.  §  37d 

sonal  estate  by  the  court  upon  motion,  and  after  no- 
tice to  the  defendant.'^^ 

§  37  d.  Writs  of  Assistance,  upon  what  Decrees  and 
for  and  against  Whom  may  Issue.— it  the  decree  directs 
the  possession  of  property  to  be  surrendered  or  given 
to  any  person,  he  is  entitled,  without  first  pursuing  pro- 
ceedings by  the  ordinary  process  of  contempt,  "upon 
due  service  of  tlie  decree  or  order,  to  an  order  for  a  writ 
of  assistance,  directed  to  tlie  sheriff  of  the  county 
where  the  property  lies,  commanding  him  to  put  the 
plaintiff  into  the  possession  of  the  premises  in  ques- 
tion, pursuant  to  the  decree  or  order.  A  demand  for 
possession  is  not  now  necessary."  ^^*^  In  tlie  United 
States  it  is  believed  that  the  rule  is  otherwise,  except 
in  those  cases  in  which  the  decree  has  expressly  or  sub- 
stantiallj''  directed  tlie  writ  to  issue,  so  that  thi'  clerk 
of  the  court  is  empowered  to  issue  it  without  any  fur- 
ther proceedings.  The  theory  of  the  courts  in  this 
country  is  that  this  writ  does  not  issue  except  when 
its  issuing  is  shown  to  be  necessary,  and  that  it  cannot 
be  so  shown  until  a  demand  has  been  made  upon  the 
party  who  is  desired  to  surrender  possession,  and  he 
has  refused  or  failed  to  comply  therewith."*^^ 

As  to  the  decrees  or  orders  which  may  justify  the 
issuing  of  this  writ,  it  may  be  stated  broadly  that 
whenever  there  has  been  an  adjudication  in  equity 
from  which  it  api^ears  that  a  party  is  entitled  to  be  in 
possession  of  property,  the  court  will  not  require  him 

400  Mitchell  v.  Draper,  f)  Vos.  20S;  Cowpcr  v.  Tnylor.  IG  Sim.  ai4. 
Cadoll  V.  Smith,  3  Swan,  300. 

410  Danioll's  Ch.  Pr.,  4th  Am.  cd.,  10G2.  This  writ  is  said  to  he 
superse<led  by  the  writ  of  possession.  Seton's  Farms  of  Decrees, 
etc..  4th  ed..  15G2. 

411  Howard  v.  Bond,  42.  Mich.  131;  Knight  v.  noughtalling,  94 
N.  C.  408. 


§  37d  ISSUING  THE  ORIGINAL  EXECUTION.  156 

to  bring  some  further  or  independent  suit  or  action, 
but  will  grant  him  this  writ,  entitling  him  to  be  placed 
in  possession  of  the  property.  This  is  but  an  applica- 
tion of  the  general  principle  that  ''when  a  court  of 
chancery  obtains  jurisdiction  of  the  subject  matter  of 
a  suit,  it  will  retain  it  to  the  end  that  justice  may  be 
done  between  the  parties."  Hence  this  writ  will  issue 
when  hj  a  decree  a  conveyance  of  property  has  been 
directed,^^-  or  the  defendant's  title  has  been  di- 
vested,**^ or  where,  by  a  cross-bill,  the  defendant  has 
shown  that  he  is  entitled  to  the  possession  of  property 
which  is  held  by  the  plaintiff,'*"  or  when,  as  the  result 
of  partition  or  otherwise,  property  has  been  directed 
to  be  sold,  and  a  purchase  has  been  made,  and  a  con- 
veyance executed  pursuant  to  the  decree."*-*^^  In  a  suit 
for  a  divorce,  if  one  of  the  parties  is  required  to  deliver 
property  to  the  other,  the  rights  of  the  latter  may  be 
i'uforced  by  a  w^rit  of  assistance.  Where  the  propriety 
of  issuing  such  a  writ  was  questioned,  the  court  said: 
^'The  court,  in  fixing  the  status  of  the  litigants,  has  the 
unquestioned  power  to  dispose  of  the  property  of  the 
community,  dividing  it  between  the  spouses  in  such 
proportions  as  seem  just.  It  has  also  jurisdiction  to 
determine  whether  or  not  a  given  piece  of  property  is 
or  is  not  community  property.  Having  these  ample 
powers  to  adjudge  and  to  award,  it  would  be  anomal- 
ous indeed,  if,  under  our  simplified  procedure,  it  were 
obliged  to  send  either  of  the  parties  into  another  forum 
to  prosecute  another  action  to  obtain  possession  of  that 
which  it  had  the  power  to  give."  **^    It  is,  of  course,  es- 

412  Garretson  v.  Cole,  1  Har.  &  .T.  :M0. 

413  Irvine  v.  Mcra-e,  5  Huinph.  554,  42  Am.  Dec.  4GS. 
41*  Lloyd  V.  Barues,  45  III.  G2. 

415  Keil  V.  West,  21  Fla.  508. 

416  Kirsch  v.  Kirsch,  113  Cal.  56. 


157  ISSUIXU  THE  ORIGINAL  EXECUTION.  §  37d 

sential  tbat  the  order  or  decree  under  wliieli  the  writ 
is  claimed  should  be  so  far  final  as  to  determine  the 
rights  of  the  parties.  Hence  the  writ  should  be  refused 
a  purchaser  at  a  judicial  sale  which  has  not  been  con- 
firmed, for,  until  such  confirmation,  it  cannot  be  known 
Avhether  he  will  become  entitled  to  the  i)ossession  of 
the  property  or  not.^^'' 

The  persons  who  may  become  entitled  to  a  writ  of  as- 
sistance include^  according  to  the  weight  of  authority 
upon  this  subject,  all  those,  whether  nominally  parties 
to  the  suit  or  not,  who  by  the  decree  or  order  of  the 
court  or  by  or  as  a  result  of  proceedings  taken  for  its 
enforcement,  become  entitled  to  the  pos-ession  of  the 
premises.  It  may  therefore  issue  on  behalf  of  the  se- 
questrators,'*** or  of  receivers,  to  put  them  in  posses- 
sion of  the  defendant's  realty.^*"  It  may  issue  in  favor 
of  a  complainant  who  has  obtained  a  decree  divesting 
defendant's  title,  or  determining  conflicting  claims  of 
title  between  the  plaintiff  and  the  defendant,  or  direct- 
ing the  defendant  to  maive  a  conveyance  of  specified 
property,'*^**  or  in  favor  of  a  defendant  who,  by  cross- 
bill or  otherwise,  has  shown  himself  to  be  entitled  to 
the  possession,  as  where  a  cross-bill  is  maintained 
against  a  mortgagee  in  possession.*'*  Its  chief  em- 
ployment in  the  United  States  is  to  place  in  possession 
persons  who  have  purchased  real  property  at  foreclos- 
ure or  other  equity  sales.  Although  such  purchasers 
have  a  remedy  by  an  action  at  law  to  recover  such  pos- 

<i7  Moohnn  v.  Blodeett.  91  Wis.  (53. 
4i«Daiii('irs  Cli.  Pr.,  4tli  Am.  ed.,  10.")G. 

419  Sharp  V.  Carter,  3  P.  Wms.  379,  note;  Cazot  do  la  Rorde  v. 
Othon.  23  Week.  Rep.  110. 

420  Landregau  v.  Peppin,  94  Cal.  4(55;  Irviiif  v.  :MiK(m\  'j  Humph. 
554,  42  Am.  Dee.  408;  Garretson  v.  Cole,  1  II.  &J.370. 

421  Lloyd  V.  Karnes,  45  111.  U2. 


§  37d  ISSUING  THE  ORIGINAL  EXECUTION.  158 

session,  the  court  of  equity  under  whose  proceedings 
they  have  acquired  their  title  iuteri:>oses  in  their  be- 
half, and  relieves  them,  in  proper  cases,  from  the  ex- 
pense, delay,  and  annoyance  of  an  independent  action 
in  another  forum.^^^  When  the  purchaser  was  already 
a  party  to  the  suit,  there  has  never  been  any  doubt 
that  this  writ  w^ould  issue  in  his  name  and  for  his  bene- 
g^  423  ^v^iien,  however,  the  purchaser  was  not  a  party 
to  the  suit,  it  has  been  claimed  that  he  was  not  entitled 
to  this  writ,  and  that  he  could  not  otherwise  obtain 
its  aid  than  by  procuring  one  of  the  parties  to  make 
the  application  therefor  in  his  behalf.^-*  The  decisions 
to  this  effect  are  mere  dicta,  and  are  based  on  false 
premises,  to  wit,  on  the  supposition  that  as  such  pur- 
chaser was  not  a  party  to  the  suit,  it  would  be  incon- 
gruous and  irregular  to  permit  him  to  take  any  pro- 
ceeding therein  in  his  own  name.  But  a  purchaser  at 
an  equity  sale,  from  the  moment  of  the  striking  off  the 
property  to  him  as  the  successful  bidder,  has  always 
been  treated  as  a  party,  and  no  court  of  equity  has  hesi- 
tated to  treat  him  as  such,  either  when  as  a  moving 
party  he  sought  to  obtain  the  confirmation  of  the  sale, 
or  when  as  a  respondent  he  was  called  before  the  court 
for  the  purpose  of  compelling  his  compliance  with  the 
terms  of  the  sale."*^^    He  is,  therefore,  substantially  a 

422  Terrell  v.  Allison.  21  Wall.  289;  Beatty  v.  De  Forest,  27  N.  ,T. 
Eq.  482;  Diggle  v.  Boukleu,  48  Wis.  477;  Commonwealth  v.  Dieffen- 
bacli,  3  Grant  Gas.  .308;  Brown  r.  Marzyck,  19  Fla.  840;  Voigtlander 
V.  Brotze.  59  Tex.  286;  Hibernia  S.  &  K  Soc.  v.  Lewis,  117  Cal. 
577;  Higgins  v.  Petei'son.  G4  111.  App.  256;  Watkius  v.  Jarmau,  26 
Kan.  464;  Ketchum  v.  Robinson,  48  Mich.  618. 

423  See  cases  last  cited;  Dorsey  v.  Campbell,  1  Bland  Cb.  .363, 
•124  Wilson  V.  Polk,  13  Smedes  &  M.  131,  51  Am.  Dec.  151;  Lang- 
ley  V.  Veil.  54  Oal.  436. 

425  Redus  V.  Hayden,  43  Miss.  636;  Clarkson  v.  Read,  15  Gratt. 
295. 


159  ISSUING  THE  OKIGIXAL  KXKCUTION.  §  37d 

party  to  the  suit  from  tbo  (^lato  of  his  piiicliase,  and  the 
court  will  issue  its  writ  of  assistauco  iu  his  behalf  un- 
less some  good  reason  is  shown  for  witliholding  it.*^" 
The  writ  has  been  issued  in  favor  of  th<'  purchaser's  as- 
signee to  wlioin  the  conveyance  was  niade,"*^"  and  also 
in  behalf  of  one  to  whom  the  purchaser  granted  the 
property  after  conveyance.'*^'* 

The  parties  against  whom  a  writ  may  issue  are  de- 
terminable by  considering  the  nature  of  the  decree,  the 
matters  determined  thereby,  and  the  parties  against 
whom  the  determination  is  conclusive.  The  writ  is  for 
the  purpose  of  completely  executing  the  decree.  It 
may,  therefore,  issue  against  all  persons  who  are 
bound  by  the  decree  to  the  extent,  at  least,  that  their 
rights  are  adjudged  thereby,  but  it  cannot  properly  is- 
sue against  any  one  who  has  a  right  to  question  the  de- 
cree or  resist  its  enforcement.  Hence,  as  we  shall  here- 
after show,  there  may  be  instances  in  which  this  writ 
will  not  issue  even  against  a  party  to  the  suit.  If  the 
person  sought  to  be  removed  was  not  a  party  to  the 
suit,  and  was  in  possession  prior  to  its  institution, 
either  claiming  adversely  to  the  parties  ^-^  or    hold- 

■•26  Jones  V.  Hooper,  50  Miss.  510;  overi'iiliuji  on  this  point,  Wil- 
son V.  Polk,  13  Smedes  &  M.  131,  51  Am.  Dec.  151;  Wilbor  v.  Dan- 
olds,  59  X.  Y.  G57;  Knight  v.  Houghtallius;.  94  N.  C.  408;  Sclienck  v. 
Conover.  13  N.  J.  Eq.  220,  78  Am.  Dec.  95;  Lambert  v.  Livingston, 
131  111.  101;  Walkius  v.  Jarman.  30  Kau.  404;  McLaue  v.  Piaggio, 
21  Fla.  71. 

••27  Ekings  V.  Murray,  29  N.  .7.  Eq.  388. 

428  N.  Y.  L.  I.  &  T.  Co.  V.  Pvand.  8  How.  Pr.  35,  3.52:  Gibson  v. 
Marshall,  64  Miss.  72;  McLane  v.  Piaggio,  24  Fla.  71;  Ketchum  v. 
Robinson,  48  Mich.  CIS;  Farmers'  L.  &  T.  Co.  v.  Chicago  etc.  Co., 
44  Fed.  Ilcp.  G53. 

4-9  Gelpoke  v.  Milwaukee  R.  R.,  11  Wis.  4.54;  Howard  v.  R.  R. 
Co..  101  U.  S.  837;  Frelinghuysen  v.  Colden.  4  Paige.  204;  Brush  v. 
Fowler,  30  111.  53,  85  Am.  Dec.  .382;  Root  v.  Paine.  22  111.  App.  .349; 
Ricketts  v.  Chicago  etc.  L.  Assn..  G7  111.  App.  71;  Exnm  v.  Baker, 
115  N.  C.  242,  44  Am.  St.  lU-p.  449;  Comer  v.  Felton.  Gl  Fed.  Rep. 
731. 


§  3:a  ISSUINCi  THE  ORIGINAL  EXECUTION.  1G(; 

ing  a  right  of  posspssion  derived  from  some  of  them,'*"^" 
and  wbicli  has  not  terminated,  then  the  writ  Avill  not 
issue  to  dispossess  hira,  and  the  purchaser  will  be  re- 
quired to  resort  to  some  independent  suit  or  action  ta 
vindicate  his  claim  to  the  possession.  There  may  he 
tenants  in  possession  under  the  defendant  who  are  not 
made  parties  to  the  suit,  or,  being  made  parties,  hold 
under  leases  executed  before  the  mortgage  sought  to 
be  foreclosed,  and  who,  hence,  should  not  be  prejudiced 
by  the  final  decree.  In  such  a  case  it  has  been  held 
that  such  tenants  should  yield  so  far  as  consistent  with 
their  rights,  and  that  a  writ  of  assistance  may  issue 
against  them  unless  they  attorn  to  the  purchaser.*"'^ 
The  rule  as  to  the  parties  against  whom  a  writ  of  as- 
sistance may  be  directed  and  enforced  is  doubtless  the 
same  as  the  rule  designating  the  persons  who  may  be 
lawfully  dispossessed  by  an  olKlcer  executing  a  v/rit  of 
possession,"*^-  to  w  it,  the  parties  to  the  suit,  and  all  per- 
sons receiving  possession  from  or  under  them  pendente 
lite,  by  their  consent  or  connivance,  and  also  mere  in- 
truders into  possession  after  the  commencement  of  the 
suit.^^^  If,  however,  the  statute  requires  a  notice  of 
the  pendency  of  an  action  to  be  filed  and  recorded  to 
operate  as  constructive  notice  of  such  action,  a  pur- 
chaser pendente  lite,  in  the  absence  of  such  notice  and 
without  actual  notice  of  the  pendency  of  the  suit,  is  not 

430  Tliomas  v.  De  Baum,  14  N.  J.  Eq.  37;  Gilcreest  v.  Magill,  37 
111.  300;  Heffron  v.  Gage,  44  111.  App.  147;  Ex  parte  Jenkins,  48  S. 
C.  325;  Farmers'  L.  &  T.  Co.  v.  Stateu  Island  B.  L.  Co.,  39  N.  Y. 
Supp.  9C>C. 

4.n  Lovett  y.  CJei-mau  B.  C,  9  ITow.  Br.  220. 

4?.2  For  such  rule,  see  post,  §  475. 

433  Hooper  v.  Youge,  G9  Ala.  484;  Burton  v.  Lies.  21  Cal.  87; 
Brown  v.  Marzyck,  19  Fla.  840;  Knight  v.  Iloughtalling,  94  N.  C. 
408. 


161  ISSUING  THE  ORIGINAL  EXECUTION.  §  37d 

bound  by  the  final  decree,  and  cannot  be  subjected  to  a 
writ  of  assistance  based  thereon."*^^ 

One  may  successfully^  resist  an  application  for  a  writ 
of  assistance,  though  he  came  into  possession  of  the 
property  after  the  commencement  of  the  suit,  if  he  is 
not  in  privity  with  the  parties  to  the  suit  and  did  not 
act  in  collusion  with  some  of  them,  as  where  he  pur- 
chased pendente  lite  from  one  not  a  party  to  the  suit, 
but  who  was  in  possession  at  its  commencement,  claim- 
ing adversely  to  the  parties  thereto,^^  nor,  as  we  un- 
derstand the  decisions,  is  it  necessary  that  a  purchase 
be  shown  from  one  in  possession  who  is  not  a  party  to 
the  suit.  It  is  sufficient  that  an  entry  made  pendente 
lite  was  not  by  connivance  with  any  of  the  parties,  and 
was  in  good  faith  and  under  a  claim  of  title  in  behalf 
of  the  person  making  such  entry,  or  in  behalf  of  one 
for  whom  he  acted  as  agent.**^*^  Courts  are  required  to 
exercise,  and  do  exercise,  care  to  protect  persons  enti- 
tled to  a  writ  of  assistance  from  the  acts  of  third  per- 
sons probably  induced  by  collusion  with  a  party  who, 
being  no  longer  entitled  to  remain  in  possession  on  his 
own  account,  seeks  to  deprive  his  adversary  of  the 
fruits  of  his  victory  by  causing  a  stranger  to  take  such 
possession;  and,  unless  it  is  clear  that  he  who  entered 
pendente  lite  did  so  in  good  faith  and  without  collu- 
sion, a  writ  of  assistance  will  issue  against  him.'*^'' 

If  the  defendant  was  in  possession  under  a  claim  of 
right  thereto  of  a  character  which  could  not  be  liti- 
gated in  the  suit  in  which  the  decree  was  pronounced 
and  may,  therefore,  maintain  this  claim  without   dis- 

<34  Harlan  v.  Earkerby.  24  Cal.  5G1. 
435  Van  Hook  v.  Tbrotkmortou,  8  Paige,  33. 
«6  Post,  §  475. 

43T  Brown  v.  Marzyck,   19   Fla.  840;  Carpenter  v.  White,  43  IlL 
App.  448. 

Vol.  I.— 11 


§  37d  ISSUING  THE  ORIGINAL  EXECUTION.  162 

puting  anything  decided  by  such  decree,  a  writ  of  as- 
sistance will  not  issue  against  him.  Thus,  though  he  is 
a  party  to  a  suit  to  foreclose  a  mortgage,  he  may  hold 
some  adverse  title  not  included  in  the  mortgage,  and 
which,  under  the  practice  prevailing,  cannoc  be  as- 
serted as  a  defense  to  such  foreclosure.'*^**  ''Where  a 
new  and  independent  right  to  property  has  been  ac- 
quired, or  where  a  prima  facie  showing  of  the  acquire- 
ment of  such  a  right  is  made,  the  writ  should  not  issue 
and  cannot  operate  to  affect  such  new  and  independ- 
ent right.  The  writ  relates  back  to,  and  operates  upon, 
those  rights  only  which  have  been  determined  by  the 
judgment.  The  reason  for  the  issuance  of  the  writ  is 
to  give  effect  to  rights  awarded  by  the  judgment.  It 
should  not  and  cannot  operate  to  establish  in  the  one 
party,  or  to  4estroy  in  the  other,  any  rights  to  the  prop- 
erty independent  of  those  determined  by  the  judgment. 
So  it  would  follow  if  appellant  in  this  case  had  made 
even  a  prima  facie  showing  of  a  new  title  by  adverse 
possession — the  issuance  of  the  writ  which  would  have 
passed  judgment  upon  that  title  would  have  been  im- 
provident and  irregular.  But  while  appellant  claims  ' 
a  new  title  by  adverse  possession,  the  bald  assertion 
of  an  unsupported  claim  is  not  a  sufficient  warrant  for 
asking  the  court  to  withhold  its  process."  ^^^  The 
right  to  a  writ  of  assistance  cannot  be  lost  by  some 

* 

other  adjudication  against  the  plaintiff  taking  place 
before  his  right  to  the  writ  of  assistance  Avas  perfected. 
Hence,  a  judgment  against  the  applicant  in  a  proceed- 
ing for  forcible  detainer  cannot  impair  his  right  to  a 
writ  of  assistance  when  there  is  no  pretense  that  such 

<'58  Haynard  v.  Kinney,  S4  Alicli.  uOl;  Cbadwick  v.  Island  Beach 
Co..  42  N.  J.   Eq.  002. 
439  Kirsch  v.  Kirscli,  11.3  Cal.  56. 


1G3  ISSUING  THE  ORIGINAL  EXECUTION.  §  37a 

right  wns  litigated  in  the  forcible  detainer  proceed- 
ing.^^ If  tlie  applicant  for  thi'  writ  of  assistance  had, 
prior  to  such  application,  instituted  some  other  pro- 
ceeding to  recover  possession  in  which  he  failed,  be- 
cause he  had  not  made  the  requisite  demand  or  had 
not  done  some  other  act  entitling  him  to  the  posses- 
sion, this  failure  cannot  be  pleaded  in  bar  of  his  appli- 
cation for  a  writ  of  assistance  made  after  he  had  per- 
formed all  the  conditions  precedent  necessary  to  enti- 
tle him  thereto.'**^ 

The  defense  made  to  a  writ  of  assistance  cannot  in- 
volve a  relitigation  of  the  matters  necessarily  deter- 
mined by  the  decree,'**'  but  it  may  properly  include  any 
matter  not  so  determined,  and  Vhich  shows  that  the 
party  resisting  has  the  right  to  remain  in  possession. 
It  would,  perhaps, -be  more  accurate  to  state  that  if 
there  is  a  claim  of  right  not  determined  by  the  decree 
already  rendered,  the  claimant  will  be  left  in  posses- 
sion and  allowed  to  present  his  claim  as  a  defense  to 
some  independent  proceeding  brought  against  him.  In 
other  words,  a  writ  of  assistance  will  be  directed  only 
in  a  cl<?ar  case,  and  when  the  respondent  cannot  pos- 
sibly have  any  rights  which  were  not  subject  to  the 
decree.^"*  If,  for  instance,  he  sets  up  and  appears  to 
claim  in  good  faith  a  right  to  the  possession  derived 
from  and  under  the  purchaser,'*'**  or  from  the  defend- 

410  vahle  v.   Bivckeiispik.  14.")  lU.   237. 

"41  Cochran  v.  Foliier,  IIG  111.  194. 

4  42  Koll  V.  West.  21  Fla.  508;  Howe  v.  Lemon.  47  Mich.  544. 

443  Blauvolt  V.  Smith,  22  N.  J.  Eq.  31;  Thompson  v.  Campbell.  ,^7 
Ala.  183;  Enos  v.  Cook,  Go  Cal.  175;  Wiley  v.  Carlisle,  93  Ala.  38; 
Roach  V.  Clark.  l.")0  Ind.  93,  05  Am.  St.  Kep.  353;  Stanley  v.  Sulli- 
van, 71  Wis.  585,  5  Am.  St.  Rep.  245. 

444  r.angley  v.  Toll,  54  Cal.  435;  Barton  v.  Beatty,  28  N.  J.  Eq. 
412;  Mayor  of  San  Jose  v.  Fulton.  45  Cal.  31G. 


§  37e  ISSUING  THE  ORIGINAL  EXECUTION.  164 

ant  prior  to  the  commencement  of  the  suit,^^  the  va- 
lidity and  effect  of  his  claim  will  very  rarely,  and  per- 
haps never,  be  tried  upon  application  for  this  writ,  but 
he  will  be  left  in  possession.  The  writ  has  been  denied 
when  the  purchaser  had  delayed  for  a  long  period  of 
time  to  apply  for  it,***^  and  also  when  the  respondent 
had  not  intruded  into  the  possession  until  some  time 
after  the  purchaser  had  received  his  deed.**'  In  the 
first  case,  the  court  presumed  that  the  respondent 
might  have  acquired  from  the  purchaser  some  right  to 
the  possession;  and  in  the  last  case,  the  court,  while  ad- 
mitting its  duty  to  place  a  purchaser  in  possession  by 
removing  parties  unlawfull}'  withholding  the  property 
at  the  execution  of  the  deed,  did  not  conceive  that  this 
duty  was  so  continuous  as  to  require  it  to  protect  the 
purchaser  from  subsequent  intrusion. 

§  37  e.  The  Practice  to  be  Pursued  to  Obtain  a  Writ  of 
Assistance  is  not  uniform  in  the  several  states.  It  is 
not  necessary  in  any  of  the  states  that  the  decree  con- 
tain any  clause  to  the  effect  that  such  writ  shall  issue 
in  favor  of  the  i^urchaser,  or  that  the  parties  shall  sur- 
render possession  upon  a  sale  and  conveyance  being 
made.^^^  This  clause,  when  inserted  in  a  decree,  is, 
like  the  award  of  execution  in  a  judgment,  superfluous. 
In  Illinois,  however,  it  appears  that  where  a  decree  of 
foreclosure  contains  no  Order  for  the  surrender  of  pos- 
session, there  should  be  an  injunction  to  deliver  pos- 
session before  the  issuing  of  a  writ  of  assistance  to  put 

445  Thompson  v.  Smith,  1  Dill.  4r)S;  A'an  Hook  v.  Throckmorton,  8 
Paige,  33;  Henderson  v.  :\i (Tucker,  45  Cal.  G47. 

446  Hooper  v.  Yonge,  09  Ala.  484. 

447  Belts  V.  Birdsall,  11  Abb.  Pr.  222;  19  How.  Pr.  491. 

448  iioi-n  V.  Volcano  Water  Co.,  18  Cal.  141;  Montgomery  v.  Mid- 
rtlemiss,  21  Cal.  103,  81  Am.  Dee.  14G;  Dove  v.  Dove,  Dick.  617,  1 
Bro.  375;  Kershaw  v.  Thompson,  4  Johns.  Ch.  G14. 


165  ISSUING  THE  ORIGINAL  EXECUTION.  §  37e 

the  purchaser  in  possession.'*'*^  The  insertion  of  this 
clause  does  not  of  itself  authorize  the  clerk  to  issue  a 
writ  of  assistance.  As  a  condition  precedent  to  such 
writ  it  is  usually  necessary  that  thi're  should  be  some 
inquiry  on  the  part  of  the  court  or  some  detcrinination 
by  it  that  the  writ  should  issue.'*"'*^  In  the  national 
courts,  however,  this  judicial  action  is  apparently  ren- 
dered unnecessary  by  equity  rule  No.  9,  declaring  that, 
''when  any  decree  or  order  is  for  the  delivery  of  posses- 
sion, upon  proof  by  affidavit  of  a  demand  and  refusal 
to  obey  the  decree  or  order,  the  party  prosecuting  the 
same  shall  be  entitled  to  a  writ  of  assistance  from  the 
clerk  of  the  court."  We  have  heretofore  shown  that 
there  is  some  difference  of  opinion  as  to  whether  a  de- 
mand for  possession  must  precede  the  application  for 
the  writ,  and  that,  in  our  judgment,  the  weight  of  au- 
thority favors  the  requirement  of  such  demand.*^*- 
The  rights  of  the  purchaser  result  from  the  facts  that 
there  has  been  a  valid  decree,  a  sale  thereunder,  and 
the  execution  of  a  conveyance  jjursuant  to  such  sale; 
and  he  is  therefore  entitled  to  be  put  into  possession  of 
the  properly.  Formerly  the  practice  was  as  follows; 
1.  Obtain  an  order  on  the  defendant  to  deliver  posses- 
sion; 2.  Serve  such  order  on  him,  together  with  a  de- 
mand for  possession;  3.  FTave  an  attachment  issued 
for  disobeying  the  order,  which  attachment  need  not 
be  served;  4.  Make  an  affidavit  showing  these  various 
steps  which  had  been  taken,  on  which,  as  a  matter  of 
course,  an  injunction  issued  against  the  tenant  to  de- 
liver possession;  5.  Serve  such  injunction,  and  make 
an  affidavit  of  such  service,  and  that  the  delivery  of 

4*9  KessiuR-ei-  V.  Whittaker,  S2  111.  25, 

450  Cook  V.  Moulton,  68  111.  App.  4S0. 

*ii  Connor  v.  Scbaeffel,  25  Abb.  N.  C.  344:  ante.  §  37  d. 


§  37e  ISSUING  THE  ORIGINAL  EXECUTION.  166 

possession  was  refused;  6.  Move,  ex  parte  and  withoub 
notice,  and  upon  the  motion,  supported  by  such  affida- 
vits, tbe  writ  issued  of  course."*^^  ^  Manifestly,  several 
of  these  steps  may  be  omitted  without  imperiling  the 
rights  of  any  of  the  parties,  and  they  are  therefore  not 
now  required.  The  acts  now  required  of  the  purchaser 
in  most  of  the  states  are:  1.  Exhibit  his  dei'd  to  and 
demand  possession  of  the  parties  against  whom  he 
wishes  to  proceed;  2.  ^NFove  the  court  to  issue  the  writ, 
and  upon  the  hearing  of  the  motion  establish  such  ex- 
hibit and  demand,  and  that  such  parties  remain  in  pos- 
session.^*'"-  Thenmpon  the  writ  will  be  ordered  unless 
good  cause  is  shown  against  its  issuance.  The  exhibi- 
tion of  the  deed  may  be  rendered  unnecessary  by  the 
conduct  of  the  respondent,  as  where  he  announces  his 
intention  of  withholding  possession,  notwithstanding 
such  deed,  and  in  defiance  thereof. *^*^ 

The  authorities  differ  with  respect  to  the  necessity 
of  giving  notice  of  the  application  for  the  writ.  Some 
of  them  treat  it  as  an  ordinary  writ  of  execution,  like 
a  habere  facias  possessionem,  which  may  issue  without 
notice,  because  the  judgment  has  conclusively  estab- 
lished that  the  plaintiff  is  entitled  thereto.^'*  But 
there  is  this  difference  between  an  ordinary  writ  of 
possesssion  and  a  writ  of  assistance  in  behalf  of  a  pur 
chaser:  the  former  is  sanctioned  by  the  original  judg- 
ment or  decr(^e,  and  is  not  dependent  on  any  facts  or 
proceedings  subsequent  thereto;  while  the  latter  is  not 
proper  unless  there  have  been  a  valid  sale  and  convey- 
ance to  the  person  claiming  to  be  a  purchaser,  nor  un 

45ia  Kershaw  v.  Thompson,  4  .Johns.  Ch.  (;14. 
*r,2  Montgomery  v.  Middlemiss,  21  Cal.  103,  81  Am.  Deo.  146. 
40'!  Knight  V.  Iloughtalling,  94  N.  C.  408. 

«4  Harney  v.  Morion,  39  ]Miss.  508;  N.  Y.  K  I.  &  T.  Co.  v.  Rand. 
8  How.  Pr.  35,  352;  Coor  v.  Smith,  107  N.  C.  430. 


167  ISSUING  THK  OKKilNAL  KXECUTION.  §  37e 

less  the  persons  in  possession  have  refused  after  de- 
mand to  sni'i-cndcr  sueh  possession.*'*'  It  is,  therefore, 
proper,  and  we  should  think  necessary,  that  notice  of 
the  application  for  the  writ  should  be  given  to  the  per- 
sons to  be  afrectcd  tliereby.'^''  In  Wisconsin,  by  a  rule 
adopted  by  the  supreme  court  for  the  government  of 
the  circuil  courl,  it  was  the  duty  of  the  clerk  of  the  lat- 
ter court  to  issue  this  writ  when  it  was  shown  to  him 
by  affidavit  that  possession  had  been  demanded  and 
refused.  He  acted  independently  of  any  order  of  the 
court  of  whic  h  he  was  clerk,  and  he  was  not  exonerated 
from  acting  when  a  proper  affidavit  was  filed  with  him 
by  an  order  of  the  court  or  judge,  directing  him  to 
withlKdd  any  action.*^''  This  rule  was  held  to  be  inap- 
plicable when  the  person  proceeded  against  was  not  a 
dcrciidant  in  the  suit.  As  against  such  person,  it  w'as 
necessary  to  obtain  an  order  of  court. ^^■'*  It  is  true  that 
a  writ  of  assistance  improperly  issued  may  be  vacated 
on  motion;  and  if  already  executed,  the  parties  may  b;^ 
restored  to  their  ])Ossession,*^'*  and  the  wrongs  result- 
ing froni  its  improvident  issuing  may  thereby  be  miti- 
gated if  not  averted.  Nevertheless,  in  so  serious  a  mat- 
ter as  invading  or  destroying  the  possession  of  a  free- 
hold, we  think  it  far  better  that  the  parties  in  posses- 
sion have  notice  of  the  application  for  the  writ,  and  be 
then  given  an  opportunity  to  urge  any  defense  which 
remains  open  to  them,  notwithstanding  the  decree  and 
sale. 

45'- Howard  v.  Bond.  42  ^[i(•h.  IHl;  Clriswold  v.  Simmons.  50  Miss. 
123. 

450  r.ianvolt  V.  Smith.  22  N.  .T.  E(i.  31;  Joints  v.  Iloopor.  50  Miss. 
510;  Hooper  v.  Yonirc.  GO  Ala.  484;  McLaue  v.  Piaggio,  24  P'la.  71; 
Sau  .Tose  v.  Fulton.  45  Cal.  3in. 

457  Attorney-CJouoral  v.  Lum,  2  Wis.  507. 

••s^'  Goit  V.  Dkkernian,  20  Wis.  0;iO. 

459  Skinner  v.  Beatty.  10  Cal.  1.5G;  Chanilu-rlain  v.  fliolcs;.  35  X.  Y. 
477;  Coor  v.  Smith.  107  X.  C.  430;  Wiley  v.  Carlisle.  03  Ala.  237. 


THE  FORM  OF  THE  ORIGINAL  EXECUTION.  168 


CHAPTEE  III. 

THE  rOEM  OF  THE  ORIGINAL  EXECUTION. 

§  38.     E^^bential  parts  of  the  writ. 
§  39.     Omission  of,  or  error  in,  the  style  of  the  writ. 
§  40.     To  Avhom  directed. 

§  41.     Words  of  command.     General  and  special  writs. 
§  42.     The  description  of  the  judgment. 

§  43.     Consequence     of  variances  between  executions  and  judg- 
ments. 
§  44.     Desiguatiu.c  the  return  day. 
§  45.     Clause  of  attestation. 
§  46.    The  seal. 

§  47.     Alterations  after  th,e  issuing  of  the  writ. 
§  47a.  Forms  of  execution  on  decrees. 

§  38.  The  Essential  Parts  of  the  Writ.— In  the  pre- 
ceding chapter  we  have  seen  that,  before  an  original 
execution  can  properly  issue,  there  must  be — 1.  A 
court  competent  to  issue  the  writ;  2.  A  judgment,  de- 
cree, or  order  which  the  law  authorizes  to  be  put  in 
execution  by  aid  of  the  writ;  3.  A  demand  for  the 
writ,  made  to  the  proper  officer  by  the  proper  person, 
against  a  defendant  whose  property  is  subject  to  exe- 
cution; 4.  The  time  allowed  for  issuing  the  writ  must 
liave  commenced,  and  must  be  still  unexpired;  and  5. 
Nothing  must  have  occurred  to  suspend  or  postpone 
the  right  to  execution.  When  inquiries  in  regard  to 
these  five  prerequisites  have  all  been  answered  in  the 
affirmative,  the  right  to  an  execution  must  be  conceded. 
The  next  inquiries  are  in  regard  to  the  writ  itself — 
what  must  its  contents  be,  and  in  what  form  and  order 
shall  they  be  set  forth.^ 

1  For  forms  of  writs  at  common  law  and  In  equity,  see  the  note 
at  the  end  of  tliis  chapter. 


1C9  TIIH  FORM  OF  THE  ORIGINAL  EXECUTION.  §  38 

In  most  of  the  states, provision  is  made  by  statute  for 
the  form  and  contents  of  executions.    It  has  been  held 
that  where  the   statute   provides  a  form,  it   must   be 
strictly  fc^Ilowed,  especially  by  justices  of  the  peace.^ 
But  we  apprehend  that  this  decision  was  made  under  a 
misconception  of  the  true  purposes  of   such   statutes, 
iind  that  it  cannot  be  regarded  as  a  correct  interpreta- 
tion of  the  law.     The  object  of    these  statutes  is  to 
enumerate  the  substantial  elements  of  the  writ,  rather 
than  to  command  adherence  to  a  prescribed  form.    Pos- 
sibly the  language  of  the  statute  may  be  so  mandatory 
as  to  render  a  departure  therefrom  fatal  to  the  writ. 
Thus,  the  Code  of  Civil  Procedure  of  New  York  pre- 
scribes the  form  of  the  execution  where  a  w^arrant  of 
attachment  has  been  issued  and  levied  by  the  sheriff, 
and  declares  that  such  execution  "must  require"  the 
sheriff  to  satisfy  the  judgment  in  the  way  pointed  out 
by  the  statute.    It  was  held  that,  where  the  execution 
should  have  directed  the  officer  to  satisfy  the  judgment, 
first,  out  of  the  attached  personal  property;  second, 
out  of  the  other  personal   property  of   the   judgment 
debtor,  and,  lastly,  out  of  his  attached  real  property, 
but  instead  thereof  it  commanded  the  sheriif  to  collect 
the  judgment  out  of  the  attached  personal  property  of 
the  judgment  debtor,  and,  if  that  was  insutlficient,  out 
of  his  attached  real  property,  such  writ  was  void  and 
no  title  could   be    acquired   by  the  purchasers  there- 
under because  they  were  put  upon  inquiry  as  to  the 
validitv  of  the  execution  bv  the  recitals  therein  and  bv 
the  judgment  and  the  attachment  constituting  a  part 
of  the  records  in  the  cause.     The  court  was  further  of 
opinion  that  it  was  not  material  that  no  injury  to  the 
defendant  appeared  from  the  irregularity  of  the  writ, 

2  Strceter  v.  Frank,  4  Cband.  03. 


§  33  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  170 

and  said:  ''Tlie  kiAv  prescribes  the  form  of  the  execu- 
tion, and  it  woiikl  be  extremelj^  dangerous  to  make  the 
validity  of  an  execution  which  omits  a  material  pro- 
vision, designated  for  the  benefit  of  the  defendant,  to 
depend  upon  an  inquiry  whether  any  actual  injury  re- 
sulted from  the  omission.  The  present  case,  though 
less  striking,  is  in  principle  the  same  as  if  an  execution 
upon  an  ordinary  judgment  in  personam  directed  its 
collection  out  of  tke  real  property  of  the  defendant, 
omitting  all  reference  to  personal  property.  The  case 
is  a  hard  one  for  the  purchasers,  but  we  see  no  answer 
to  the  motion  to  set  aside  the  sale."  ^ 

A  writ  of  execution  is  simply  an  authorization  pro- 
ceeding from,  and  directed  to,  some  competent  author- 
ity, by  which  the  former  requires  the  latter  to  do  some 
act.  To  accomplish  its  purpose,  it  must  necessarily 
state  with  certainty  the  act  to  be  done.  Whenever  a 
writ  shows  the  authority  whence  it  proceeded,  and  is 
directed  to  an  ofdcer  competent  to  execute  it,  giving 
directions  sufficient,  if  followed,  to  result  in  the  proper 
enforcement  of  the  judgment,  we  apprehend  that  it 
will  be  almost  uniformly  upheld;  and  that,  instead  of 
requiring  unusual  strictness  from  justices  of  the  peace, 
the  writs  of  those  officers  will  be  granted  unusual  in- 
dulgence.* Hence,  when  by  statute  an  alias  execution 
issued  by  a  justice  is  required  to  have  appended  to  it  a 
copy  of  the  return  made  on  the  former  writ,  the  failure 
to  append  such  return  is  a  mere  irregularity  rendering 

3  Place  V.  Riley,  98  N.  Y.  1. 

4  Bunlick  v.  Sbigley,  .30  Iowa.  63;  Cooley  v.  Brayton,  16  Town. 
10;  Dean  v.  Goddaid.  13  Iowa,  292,  81  Am;  Dec.  433;  McMahan  v. 
Colclougb,  2  Ala.  68;  Chase  v.  Plymouth,  20  Vt.  MV.),  50  Am.  Dec. 
52;  Morrison  v.  Austin,  14  Wis.  001;  Collins  v.  Camp,  94  Ca.  460; 
Buis  V.  Cooper.  63  Mo.  App.  196;  Field  v.  Parker,  4  Ilim.  .342;  Gunu 
V.  Benson,  ">  Yerg.  221.  A  fieri  facias  in  debt  upon  a  .1iid.gment  in 
assumpsit  is  not  void.     Elmsley  v.  McKenzie,  9  U.  C.  Q.  B.  559. 


171  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  3S 

the  execution  voidabh',  but  not  void.*''  So, the  failure  of 
a  justice  to  insert  tlie  name  of  the  county,  township,  or 
city  in  the  bJjinks  intended  for  such  names  is  a  mere 
clerical  irregularity  in  the  writ,  w^hich  "as  against  a 
stranger  to  it,  resisting  the  claim  of  a  purchaser  under 
it,  is  curable  by  parol  evidence.""  In  North  Carolina, 
at  an  early  date,  it  appears  to  have  been  the  practice  of 
justices  of  the  peace  to  enter  a  judgment  upon  a  dis- 
connected slip  or  piece  of  paper,  followed  by  writing 
thereunder  or  thereupon  the  words  "execute  and  sell 
agreeable  to  law,"  and  to  then  sign  this  direction.  It 
was  held  that  this  constituted  a  valid  writ  of  execution 
upon  the  "principle  that  the  proceedings  of  magis- 
trates were  entitled  to  a  liberal  construction  when  the 
exceptions  relate  merely  to  regularity  and  form."  '' 
Where,  as  in  Tennessee,  a  justice  of  the  peace  of  one 
county  is  authorized  to  issue  execution  on  a  judgment 
rendered  by  a  justice  of  another  county,  upon  receiv- 
ing a  certain  certificate  from  the  clerk  of  the  latter 
county,  it  has  been  held  that  if  the  execution  as  issued 
shows  that  the  certificate  of  the  clerk  was  substan- 
tially defective,  the  writ  is  void,  on  the  ground  that  it 
is  issued  under  a  new  and  special  jurisdiction,  which 
"must  be  strictly  ])ursued  to  make  valid  the  proceed- 
ings under  it."  ** 

It  is  not  necessary  that  the  writ  show  upon  its  face 
that  the  cause  of  action  is  one  of  which  the  justice  had 
jurisdiction,**  nor  need  the  writ,  where  some  affidavit  or 
proceeding  is  required  to  be  filed  or  given  before  its 

ft  rullH'i-tson  V.  Mllhollin.  22  Tnd.  r,G2,  8.".  Am.  Doe.  42S. 
«  Elliott  V.  ITart,  4')  Mioh.  2:?4. 

7  Governor  v.  Bailoy,  3  Ilinvk.s.  403;  Forsyth  v.  Sykos,  2  TTawks. 
54. 

8  Mooro  V.  I.ynoli.  4  Rnxt.  287;  Apporson  v.  Smith,  5  Sueed,  371; 
Eason  v.  rummins.  11    TTnmph.  210. 

»  Field  V.  Parker,  4  Hun.  342. 


§  38  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  172 

issuing,  recite  tlie  existence  of  such  conditions  prece- 
dent.*^^ Defects  in  the  writ  may  sometimes  be  sup- 
plied by  endorsements  thereon,^'*  and,  on  the  other 
hand,  an  endorsement,  though  not  authorized  by  law, 
may  perhaps  constitute  a  sufficient  excuse  for  an  officer 
who  failed  to  obey  the  directions  of  the  writ.*^  As  a 
general  rule,  however,  an  error  or  a  mistaken  recital  or 
direction,  whether  in  the  endorsement  or  in  the  body 
of  the  writ,  may  be  treated  as  surplusage,  and  there- 
fore does  not  vitiate  it.^^ 

If  a  court  of  chancery  is  authorized  to  issue  a  fieri 
facias  for  the  collection  of  a  judgment  for  moneys,  the 
form  employed  should  correspond  substantially  with 
that  in  use  in  the  courts  of  law.^^ 

The  form  of  execution  most  usually  adopted  contains 
the  following  particulars:  1.  It  purports  to  issue  in 
the  name  of  some  sovereign  power;  in  England,  the 
name  of  the  reigning  monarch  is  used;  in  the  United 

States,  the  name  is  the  state  of ,  or  the  people  of 

the  state  of ;  2.  It  is  addressed  to  the  sheriff,  or  to 

some  other  officer  competent  to  execute  it;  3.  It  com- 
mands the  officer  to  do  some  act;  4,  It  shows  the  pur- 
pose for  which  the  act  is  to  be  done,  or  in  other  words, 
the  judgment  of  which  satisfaction  is  sought;  5.  It  usu- 
ally directs  a  time  and  place  in  which  and  to  which  a 
return  must  be  made;  6.  It  closes  with  a  clause  of 
attestation.     We  shall  now  separately  consider  each  of 

9a  LobrotoD  V.  Lemaire  (Tex.  Civ.  App.)  43  S.  W.  31. 

10  Nichols  V.  Taylor,  6  Monr.  325;  McGuire  v.  Galligan,  53  Mfch. 
453. 

11  Fuller  V.  Wells,  42  Kan.  551. 

12  Walls  V.  Smith,  19  Ga.  8;  Dixon  v.  Williams.  82  On.  105;  .Tack- 
son  V.  Sternberg,  1  Johns.  Gas.  153;  Simpson  v.  Simpson,  04  N.  0. 
427;  Portis  v.  Parker,  8  Tex.  23.  o8  Am.  Dec.  95. 

13  Lfoundes  v.  Pinckney,  2  Strob.  Eq.  44. 


173  THE  FORxM  OF  THE  ORIGINAL  EXECUTION.  §  :i9 

these  particulars  for  the  purpose  of  ascertaining  the 
consequence  of  variance,  or  omissions  therein. 

§  39.  Omission  of,  or  Error  in,  the  Style  of  the  Writ.— 
It  has  always  been  the  custom  in  England  to  issue  the 
writ  in  the  name  of  the  reigning  sovereign,  and  in  the 
greater  portion  of  the  United  States  in  the  name  of  the 
state  or  of  the  people  of  the  state.  This  portion  of 
the  writ  is  purely  formal,  and  we  are  unable  to  see 
that  its  omission  ought  to  prejudice  any  one,  provided 
it  appears  from  the  whole  writ  that  it  was  issued  by 
virtue  of  some  competent  authority.  This  authority 
is  the  court  or  an  officer  of  such  court  to  whom  is 
delegated  the  power  to  exercise  the  authority  of  issu- 
ing writs,  as  the  act  of  the  court,  for  the  enforcement 
of  its  judgments.  Whether  the  omission  of  the  style 
of  the  writ  might  on  prompt  application  furnish  a  suf- 
ficient ground  for  quashing  the  execution  has  never,  so 
far  as  we  can  ascertain,  been  determined.  The  effect 
of  such  an  omission  in  a  summons  has  been  considered 
in  several  of  the  states, resulting  in  divergent  decisions, 
the  minority  ^*  maintaining  that  an  omission  or  error 
of  this  character  is  an  irregularity  merely,  and  the 
majority  declaring  that  it  makes  the  writ  void.^^ 
With  respect  to  writs  of  execution,  the  weight  of  au- 
thority is  the  other  way,  whether  the  irregularity  con- 
sists in  an  error,  as  where  the  word  "territory"  was 
used  instead  of  the  word  "state,"  *"  or  in  the  entire 
omission  of  this  part  of  the  Avrit.  Probably,  like  all 
other  irregularities,  it  miglit  be  the  ground  of  a  motion 
to  quash,  which,  in  turn,  might  be  met  by  a  counter- 

»*Hanna  v.  Taipsoll.  12  Mina.  80. 

"  Gilbreath  v.  Knykondall.  1  Ark.  50;  Yoacror  v.  droves.  78  Ky. 
278;  Little  v.  Little.  .'')  Mo.  2l>7.  P.2  Am.  Dec.  317. 

16  Carnahau  v.  Pt'll,  4  Colo.  190;  State  v.  Cassitlay,  4  S.  D.  58. 


§  39  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  174 

motion  to  amend.  At  all  events,  it  seems  certain,  ex- 
cept in  one  state,  that  a  writ  of  execution  will  not  be 
adjudged  void,  nor  a  sale  or  other  proceeding  there- 
under invalid,  for  any  omission  or  error  in  the  style  of 
the  writ.^''  Doubtless  the  law  is  otherwise  in  Illinois. 
The  courts  of  that  state  are  inclined  to  regard  every 
statutory  direction  with  respect  to  the  form  and  con- 
tents of  an  execution  as  essential  and  mandatory. 
Hence  if  the  writ  does  not  run  in  the  name  of  the 
people  of  the  state,  it  will  there  be  held  void.^** 

17  Thompson  v.  Bicliford,  19  Minn.  1;  Bean  v.  Loftus,  48  Wis. 
;5T1;  Hibberd  v.  Smith,  50  Cal.  511.  In  this  case  the  writ  was  for 
a  sum  remaining  unpaid  after  a  foreclosure  sale.  The  formal  parts 
of  it  were  as  follows:  "State  of  California,  county  of  Alameda,  ss.: 
Whereas,  a  judgment  and  decree  of  sale  was  rendered  in  the  dis- 
trict court  of  the  third  judicial  district,"  etc.  It  then  recited  the 
foreclosure  sale,  the  fact  that  the  sheriff  had  reported  a  deficiency, 
and  then  proceeded  as  follows:  ''These  are  therefore  to  command 
you,  as  heretofore  you  have  been  commanded,  that  of  the  goods 
and  chattels,  if  sufficient;  if  not,  then  of  the  lands  and  tenements 
of  the  said  William  W.  Chipman,  you  levy  and  cause  to  be  made," 
<'te.    The  writ  was  excluded  from  evidence  by  the  trial  court.    This 

was  determined  to  be  error  by  the  supreme  court,  which  in  so  do- 
ing said:  "The  execution  offered  by  defendants,  alth(iugh  irregular 
and  defective  in  form,  was  amendable,  and  not  void." 

18  Sidwell  V.  Schumacher,  99  111.  433.  The  general  views  of  the 
<-ourt  upon  this  question  were  expressed  as  follows:  "While  there  is 
some  conflict  of  authority  upon  this  subject,  yet  it  is  believed  that 
the  weight  of  authority  establishes  the  proposition  that  where  the 
law  expressly  directs  that  process  shall  be  in  a  specified  form,  and 
issue  in  a  particular  manner,  such  a  provision  is  mandatory,  and 
a  failure  on  the  part  of  the  official  whose  duty  it  is  to  issue  it  to 
comply  with  the  law  in  that  respect  will  render  such  process  void. 
On  the  other  hand,  it  is  well  settled  that  there  are  many  merely 
formal  defects  which  do  not  have  that  effect.  To  illustrate,  where 
the  statute  or  constitution  expressly  requires  that  process  shall  is- 
sue under  the  seal  of  the  court,  and  be  tested  in  the  name  of  and 
signed  by  the  clerk,  the  failure  to  comply  with  either  of  these  re- 
<iuiremeuts  would,  as  it  is  believed,  according  to  the  weight  of  au- 
tliority.  render  the  process  void.  The  legislature  or  the  people, 
through  the  constitution,  have  the  unquestionable  right  to  say  of 
wliat  process  sliall  consist,  and  when    they  have  declared  that  it 


175  THE  FORM  OF  THE  ORIGINAL  EXECUTION,  §  40 

§  40.  To  Whom  Directed.— ''Uy  the  ancient  law  of 
the  land,  all  writs  (except  to  some  few  particular  juris- 
dictions) are  directed  to  the  sheriff  of  the  county  where 
the  cause  of  suit  arose;  and  cannot  be*  directed  to  any 
other  person,  unless  it  be  in  special  cases  where  there 
is  good  cause  of  excfptlon  against  the  sherilT,^"  and 
there  the  writ  shall  be  directed  to  the  coroner,  who 
then  standeth  in  the  place  of  the  sheriff;  as  where  it  is 
alleged  that  the  sheriff  is  of  kin  to  any  party  in  the 
writ,  or  where  the  sheriff  is  himself  a  party  to  the  suit, 
whether  plaintiff  or  defendant;  also  in  some  cases 
where  the  sheriff  mnketh  default  of  serving  pro- 
cess," '^  AVhen  the  writ  issues  to  the  coroner,  it  need 
not  disclose  the  reason  why  it  is  not  issued  to  the  sher- 
iff.'*    A   sale   made  by  a  sheriff  under  a  writ    issued 

shall  be  of  a  specified  form,  by  implication  all  other  forms  are  pro- 
hibited. If  s\uh  laws  are  merely  directory,  then  writs  are  as  valid 
without  their  observation  as  with  it,  and  every  clerk  would  be  at 
liberty  to  issue  process  in  whatever  form  might  suit  his  fancy.  If 
one  of  these  requiromeuts  may  be  omitted,  all  may,  on  the  same 
principle.  Under  such  a  system,  one  clerk  misjlit  conclude  that  the 
ceremony^of  attaching  a  seal  was  idle  and  Uvseless;  another  might 
think  the  writ  would  be  sutficient  with  a  seal,  and  that  the  ad- 
dition of  the  name  of  the  clerk  would  therefore  be  superfluous;  an- 
other might  tliink  all  these  requirements  of  the  law  are  but  idle 
ceremonies,  and  for  them  substitute  something  altogether  different. 
Under  such  a  system  of  things,  how  could  the  defendant,  in  the  pro- 
cess, know  what  was  valid  and  binding  upon  him  and  what  was 
not,  and  when  to  obey  and  wlien  not?  And  how  could  the  officer 
into  whose  hands  it  was  delivered  for  execution  know  whether  he 
would  be  protected  in  serving  it  or  not?  And  what  would  become 
of  the  almost  numberless  questions  discussed  by  the  courts  and 
legal  authors,  founded  upon  the  supposed  distinction  between  void 
and  voidable  process,  if  there  are  no  essential  requirements  by 
which  the  one  can  be  distinguished  from  the  other?" 

19  Walter  v.  Denison,  24  Vt.  .5.51;  Penn.  v.  Isherwood.  ."">  (".111.  20ti. 

20  Bingli.Mui  on  .Judgments  and  Executions,  222.  In  Texas  pro- 
cess issues  to  a  constable  when  tlie  sheriff  is  disqualified.  :McClane 
V.  Rogers.  42  Tex.  214. 

21  Bastard  v.  Trutch,  4  Dowl.  P.  C.  G;  3  Ad.  &  E.  4.51;  1  Har.  &: 
W.  321;  see  Moss  v.  Thompson,  17  Mo.  405.    A  writ  directed  to  the 


§  40  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  176 

upon  a  jiulgment  in  favor  of  himself  is  void.-^     The 
statutes  of  Kentucky  require  process  to  be  directed  to 
the  sheriff  of  the  county,  or,  if  he  be  a  party  or  be  inter- 
ested, to  the   coroner,  or,  if  he  be  interested,  to  the 
jailer,  or,  if  all  these  officers  be  interested,  to  a  consta- 
ble.    A  writ  of  execution  was  directed  to  the  coroner 
or  jailer  and  was  executed  by  the  latter,  who  levied 
upon  and   sold  real  property  of  the  defendant.     The 
purchaser,  having  moved  for  a  writ  of  possession,  was 
resisted  on  the  ground  that  the  levy  and  sale  were 
void.     The  issue  w^as  made  that  neither  the  sheriff  nor 
the  coroner  was  a  party  or  interested.     The  court  said: 
"The  execution  shows  that  it  was  directed  to  the  coro- 
ner or  jailer,  from  which  fact  the  presumption  arises 
that  the  coroner  was  not  interested,  and  that  the  exe- 
cution ought  to  have  been  directed  to  him  and  executed 
by  him.     Instead,    however,  it  was   executed   by   the 
jailer,  which,  in  the  absence   of   proof   that   both  the 
sheriff  and  the  constable  were  interested,   he  had  no 
authority  to  do."     The  judgment  of  the  trial  court  re- 
fusing the  writ  of  possession  was  therefore  afflrmed.-'"^ 
A  special  execution  authorizing  the  sale  of  attached 
property  should  be  directed  to  the  sheriff  in  office  at 
the  time  of  its  issuing.     If  improperly  issued  to  an  of- 
cer  whose  term   has  ex])ired,  he  is  not  authorized  to 
execute  it,  and  his  failure  to  do  so  cannot  constitute  a 
breach  of  his  bond,  nor  can  any  indorsement  made  by 
liim  thereon  be  considered  an  official  return.^* 

coroner  because  of  a  vacancy  in  the  sheriff's  office  may  be  turned 
over  to  the  new  sheriff  after  his  appointment.     Carr  v.  Youse,  39 

Mo.  340,  90  Am.  Dec.  470.     A  writ  directed  to  the  constable  of  

seems  to  have  been  regarded  as  invalid  in  Hall  v.  Moor,  Addis.  370. 

22  Collais  v.  McLeod.  8  Ired.  221,  49  Am.  Dec.  370;  Elston  v.  Bret, 
Moore.  .547;  liowlet's  Case,  Dyer,  188  a;  Cliambers  v.  Thomas,  1  Litt. 

2G8.  ' 

23  Gowdy  V.  Sanders,  88  Ky.  .340. 

24  State  V.  Atkinson,  53  Avk.  98. 


177  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  41 

§  41.  Words  of  Command.  General  and  Special 
Writs. — Every  writ  of  execution  should  contain  words 
commandiug  tlic  ollicer  to  do  the  acts  rei^uired  to  be 
done  by  him  to  accomplish  the  satisfaction  or  other  en- 
forcement of  the  judgment.  Though  the  judgment  is 
for  the  recovery  of  money,  it  may  be  of  such  a  character 
that  its  enforcement  is  limited  to  spt  cific  property 
described  therein,  and,  whether  so  described  or  not, 
specific  propert}'  may  be  all  that  is  subject  thereto,  or, 
though  the  general  property  of  the  judgment  debtor  is 
all  subject  to  the  judgment,  some  lien  may  have  been 
acquired  antedating  it  and  rendering  the  sale  of  the 
property  subject  to  such  lien  specially  desirable. 
When  the  right  to  take  the  property  of  the  defendant 
is  not  limited  by  the  character  of  the  judgment,  the 
execution  is  called  general,  and  its  command  should 
correspond  to  the  right  of  the  plaintiff  by  directing  the 
oflQcer  to  take  or  sei^.e  or  cause  to  be  made  out  of  the 
property  of  the  defendant  Avhich,  according  to  law,  is 
subject  to  the  satisfaction  of  the  writ.  At  the  com- 
mon law  the  command  of  a  fieri  facias  was  that  of  the 
goods  and  chattels  of  the  defendant  the  officer  cause 
to  be  made  the  sum  named  in  the  writ.  In  the  T'nited 
States,  as  the  lands  of  the  defendant  are  also  subject 
to  be  taken  in  execution,  the  command  of  a  general 
writ  may  be  that  of  the  goods,  chattels,  and  real  estate 
of  the  defendant  the  officer  cause  to  b -  made  the 
amount  of  the  judgment,  with  costs;"'  and  it  is  not 
material  what  was  the  character  of  the  debt   upon 

25  Clouts  V.  Rich,  12  Fla.  ('>P,o:  Brown  v.  Dunc-iii.  i:-.2  Til.  41.'^.  22 
Am.  St.  Rep.  545;  Mayer  v.  Farmers'  Bank.  44  la.  212;  Koepke  v. 
Dyer,  80  Mich.  311;  Taylor  v.  Ames,  5  R.  I.  361. 
Vol.  I.— 12 


§  41  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  178 

which  the  judgment  was  recovered.  Hence,  an  execu- 
tion for  a  fine  may  contain  this  general  direction.^** 

"A  special  fieri  facias  differs  from  the  general  writ 
only  in  this — that  it  points  out  and  specifies  the  prop- 
erty to  be  sold,  and  pursues  and  follows  the  judgment 
in  respect  of  the  disposition  of  the  proeej  ds  arising 
from  the  sale."  ''  It  may  be  stated,  as  a  general  rule, 
that  the  authority  to  issue  a  special  execution  must  be 
specially  conferred  by  statute,  and  hence  that  the 
courts  have  no  right  to  restrict  the  plaintiff  to  an  exe- 
cution of  this  character  when  the  law  gives  him  the 
general  right  to  proceed  against  all  property  of  the 
defendant  ordinarily  subject  to  execution.^** 

When  the  judgment  does  not  in  terms  restrict  the 
right  of  the  plaintiff,  we  think  it  is  the  usual  practice  to 
issue  a  general  execution,  though  by  the  levy  of  an 
attachment  or  by  some  other  proceeding  a  lien  has 
been  created  against  specific  property,  and  though  by 
the  practice  in  a  state  a  special  execution  may  be 
proper,  the  plaintiff  may,  nevertheless,  take  out  a  gen- 
eral execution,  and  the  sale  thereunder  will  have  the 
same  effect  as  to  the  attached  property  as  though  a 
special  writ  had  issued.^^  Though  the  judgment  is 
declared  therein  to  be  a  lien  on  all  the  real  property  of 
the  defendant,  a  general  execution  may  issue  without 
mentioning  this  fact,  and  a  sale  thereunder  has  the 
same  effect   as  if   the   execution   had   been   specially 

26  Gill  V.  state,  39  W.  Va.  479,  45  Am.   St.  Rep.  928. 

27  Lord  V.  .Tohnson.  102  Mo.  GSO. 

2s  Sheriff-  v.  Ritcb,  12  Fla.  03.3;  Brown  v.  Duneau,  1.32  111.  413,  22 
Am.  St.  Rep.  54.">;  Mayer  v.  Farmers'  Bank,  44  la.  212;  Phillips  v. 
Stewart,  GO  :Mo.  149. 

2»  Boothe  V.  Estes.  1(1  Ark.  104;  Stotts  v.  Brookfield,  55  Ark.  .307; 
Swayze  v.  McCrossin,  13  S.  &  M.  317;  Kritzer  v.  Smith,  21  Mo.  29G; 
Phillips  V.  Stewart.  G9  Mo.  149;  Foster  v.  Potter.  37  :Mo.  .52.5;  Lieb- 
mau  V.  Ashbacker,  36  Oh.  St.  94;  Swift  v.  Agues,  33   Wis.  228. 


179  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  41 

(lirecled  uj^aiiist  the  real  property  owned  by  the 
defendant  at  the  rendition  of  the  judgment.^" 

In  Indiana  an  execution  recited  the  rendition  of  the 
judgment,  and  added  "by  levy  and  sale  of  the  goods" 
of  the  judgment  defendant,  "and  make  due  return 
thereof  witliin  six  months  from  date."  It  did  not  con- 
tain any  other  words  of  command  or  direction.  The 
supreme  court  of  the  state  held  that  this  writ  did  not 
justify  the  oflicer  to  whom  it  was  directed  and  deliv- 
ered in  levying  on  the  property  of  the  defendant.^^ 

The  instances  in  which  writs  have  issued  from  which 
the  words  commanding  the  levy  were  substantially 
omitted  are  exceedingly  rare.  We  incline  to  the 
opinion  that,  even  in  the  case  of  a  substantial  omission 
of  this  part  of  tlie  writ,  it  is  nevertheless  amendable, 
and  not  absolutely  void,^*^  though  we  must  confess  the 
existence  of  decisions  in  conflict  with  our  views  upon 
the  subject.  Thus  it  has  been  held  that  the  omission 
of  the  name  of  the  person  whose  property  was  directed 
to  be  seized  made  the  writ  void,  thougii  from  the  whole 
thereof  it  was  clear  from  whom  satisfaction  of  the 
judgment  should  be  sought.^^ 

It  may  be  that  under  the  law  it  is  the  duty  of  the 
sheriff  to  levy  on  one  kind  of  property  in  preference  to 
another,  and  tliat  the  writ  ought  to  command  him  ac- 
cordingly. Thus,  in  New  York,  under  a  certain  class 
of  judgments,  the  statute  required  the  execution  to 
direct  the  slieriff  to  satisfy  it,  first,  out  of  attached  per- 
sonalty; secc^nd,  out  of  any  other  ])ersonalty  w^hich 
could  be  found;  and  third,  out  of  attached  real  prop- 
erty.    A  writ  which  "commanded  the  sheriff  to  collect 

:«>  Mayor  v.   Farmers'   Bank,  44  la.   212. 
»i  Gaskill  V.  AUlrich,  41  lud.  338. 

32  Cheese  v.   riymouth.  20  Vt.  4^19.  .'O  Am.  Doo.  .'2. 

33  Capps  V.  Leaclmiau,  DO  Tex.  490,  o\)  Am.  St.  Itep.  830. 


§  41  THE  FOU.M  OF  THE  ORIGINAL  EXECUTION.  180 

the  jiulgment  out  of  the  attached  personal  property  of 
the  judiiinent  debtor,  and  if  that  was  insufficient,  out  of 
his  attached  real  property,"  was  adjudged  void.^*  No 
reason  was  given  for  the  decision  other  than  that  the 
statute  was  peremptory  in  its  requirement,  and  obvi- 
ously intended  that  the  defendant's  personalty, 
whether  attached  or  not,  should  tirst  be  appropriated 
under  the  writ  before  any  resort  could  be  had  to  his 
realty.  This  reason  appears  to  be  far  from  conclusive. 
The  statute  in  question  does  not  seem  to  be  more  per- 
emptory than  any  of  the  other  statutory  provisions  re- 
quiring or  directing  certain  things  to  be  done  in  and 
about  the  issuing  and  enforcing  of  writs;  and  by  an  al- 
most unanimous  judicial  concurrence  most  of  these 
other  provisions  are  treated  as  directory  merely — as 
being  provisions  in  the  interest  of  the  defendant,  and 
upon  which  he  may  insist  by  obtaining  the  vacation  of 
any  writ  or  proceeding  not  in  substantial  conformity 
therewith,  and  which  he  may  and  does  waive  by  re- 
maining inactive  and  permitting  his  property  to  be 
taken  and  sold  thereunder  without  any  protest.  Hence 
we  think  the  better  rule  upon  this  subject  is,  that  the 
omission  in  an  execution  to  direct  the  order  in  which 
different  classes  of  property  should  be  seized,  or  even 
a  misdirection  in  this  regard,  is  a  mere  amendable  de- 
fect, and,  whether  corrected  or  not,  cannot  make  the 
writ  void.^*"^  In  truth,  where  it  is  apparent  from  a  writ 
that  it  has  been  issued  upon  a  judgment  designated 
therein,  and  that  its  object  is  to  require  the  officer  to 
whom  it  is  directed  to  take  proceedings  to  satisfy  such 
judgment,  Ave  cannot  think  it  material  that  some  error 

34  Place  V.  Riley,  98  N.  Y.  1. 

35  Wright  V.  Young,  G  Or.  87;  Clinkscales  v.  Hall,  15  S.  C.  602; 
West  V.  Krebaum,  88  111.  2G3. 


181  TIIK  FORM  OF  THE  ORIGINAL  EXECUTION.  §  41 

or  omission  has  been  made  in  the  words  of  command 
contained  in  the  Avril/'''  Whether  the  judgment  is 
general  or  special,  the  writ  ought  to  conform  thereto, 
but  if  it  be  general  when  it  should  have  been  special,  or 
special  when  it  should  have  been  general,  but  the  acts 
done  thereunder  are  such  only  as  were  authorized  by 
the  judgment,  we  think  they  must  be  treated  as  valid. 
Where  the  judgment  is  for  the  sale  of  specific  prop- 
erty, especially  if  it  is  not  such  as  would  sustain  a  levy 
upon  the  general  property  of  the  defendant,  the  com- 
mand of  the  writ  should  be  that  the  officer  sell  that 
particular  property,  and  it  should  be  so  described  that 
he  can  ascertain  therefrom,  or  from  matters  referred 
to  therein,  out  of  what  property  he  is  to  satisfy  the 
writ.^''  Where  a  writ  was  issued  against  special  prop- 
erty upon  the  theory  that  the  plaintiff  had  a  lien  there- 
on, and  it  was  determined  that  such  a  lien  did  not  exist 
and  that  the  plaintiff  was  entitled  to  a  general  execu- 
tion only,  it  was  said  tlmt  the  special  execution  was 
void  and  should  be  quashed,^**  but  that  where  the  exe- 
cution was  general  in  form,  it  was  not  rendered  void  by 
a  mistaken  assertion  or  recital  therein  that  a  lien  ex- 
isted on  certain  described  property.^*  If  the  command 
of  a  writ  is  special  and  restricted,  it  may  be  urged  that 
the  doing  of  any  act  not  embraced  within  the  command 
is  unauthorized,  but  such  objection  cannot  be  made 
with  success  to  an  act  which  is  within  the  special  com- 
mand and  which  would  also  have  been  authorized  had 
the  writ  been  general  in  form.  Hence,  a  sale  of  prop- 
so  Gardner  V.  .Mobile  etc.  R.  II.  Co.,  102  Al.i.  02-'.  4S  Am.  St.  Rep. 
84. 

3T  Winslow  V.  O'Pry,  ."»G  Cia.  i:JS;  Ilayues  v.  Richardson,  Gl  Ga. 
390;  Merwin  v.  Hawker,  31  Kan.  222. 
8"  Koepke  v.  Dyer,  80  Mich.  311. 
3»  Allured  v.  Voller,  107  Mich.  47G. 


§  41  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  182 

erty  within  a  county  cannot  be  avoided  on  the  ground 
that  the  writ  under  which  it  was  made  directed  the 
levy  to  be  only  upon  lands  within  that  county,  such 
restriction  not  being  authorized  by  law.***  If  plaintiff 
is  entitled  to  a  writ  directing  the  sale  of  all  the  prop- 
erty of  the  defendant,  but  the  writ  in  fact  issued 
directs  the  sale  of  specific  property,  which  is  there- 
under sold,  it  is  said  that  tlie  writ  and  the  sale  there- 
under may  be  sustained,  because,  as  there  was  author- 
ity to  command  the  sale  of  the  whole  of  the  property 
of  the  defendant,  this  necessarily  included  authority  to 
direct  the  sale  of  any  specified  part  thereof.'*^  If 
the  plaintiff,  by  virtue  of  the  judgment  or  of  proceed- 
ings anterior  thereto  has  a  lien  on  specific  property,  or 
if  the  judgment  be  against  a  married  woman,  he  is  en- 
titled to  proceed  only  against  her  separate  estate,  a 
general  execution  will  sustain  any  levy  or  sale  there- 
under which  might  have  been  authorized  had  a  special 
writ  issued.*^  A  statute  of  Pennsylvania  provided 
that  whenever  any  judgment  should  be  recovered 
against  one  or  more  members  of  a  partnership  upon  an 
individual  indebtedness,  the  plaintiff  might  have  an 
execution  which  should  command  the  sheriff  to  levy 
upon  the  interest  of  the  defendant  in  such  partnership. 
Writs  of  execution  issued  upon  judgments  against  a 
partner,  one  of  which  contained  the  command  as  au- 
thorized by  this  statute,  but  the  other  did  not.  It  was 
hence  claimed  that  the  writ  issued  without  including 

40  Bunker  v.  Rand,  19  Wis.  253,  88  Am.  Dec.  6&4. 

*i  Pracht  V.  Pistpr.  30  Kan.  568. 

42  Stotts  V.  Brookflold,  .55  Ark.  307;  Bootlie  v.  Estos,  16  Ark.  104; 
Merwin  v.  Hawker,  31  Kan.  222;  Swayze  v.  McOi-ossin,  13  S.  & 
M.  317;  Cabell  v.  C!nibl)s,  48  Mo.  353;  Thompson  v.  Sargent,  15 
Abb.  Pr.  452;  Liebman  v.  Ashbacker,  36  Oh.  St.  94;  Cliukseales  t. 
Hall,  15  S.  C.  G02. 


183  THE  FORM  OF  THE  ORI(;iNAL  EXECUTION.  §  42 

in  it  this  special  statutory  command  did  not  authorize 
a  levy  made  thereunder  on  the  interest  of  the  defend- 
ant in  a  partnership,  and  that  a  writ  later  in  date  and 
time  of  levy  tliercfore  took  precedence,  but  it  was  held 
that  the  onh'  consequence  arising  from  the  omission 
was  to  excuse  the  sheriff  from  levying  on  the  interest  of 
the  defendant  in  any  partnershii)  until  notified  thereof 
or  re(iuested  to  make  the  levy,  and  that  a  levy  actually 
made  by  him  at  the  direction  of  the  plaintiff  was  as 
valid  as  if  the  execution  had  issued  in  the  special 
form.'*^ 

§  42.  Describing  the  Judgment- — In  regard  to  the 
particulars  considered  in  the  last  three  sections,  very 
little  litigation  has  arisen.  We  now  come  to  the 
fourth  and  most  important  particular — one  in  regard 
to  which  omissions  and  variances  are  most  likely  to 
occur,  and  which,  therefore,  is  most  likely  to  furnish 
frequent  occasion  for  judicial  determination.  In  this 
part  of  the  execution  the  same  precision  must  be  at- 
tained as  is  necessary  in  the  entry  of  a  judgment.  It 
should  show  for  and  against  whom  the  execution 
issues:  the  amount  or  amounts  to  be  taken  from  the 
latter  for  the  benetit  of  the  former;  and  also  the  date 
at  which  and  the  court  wherein  the  judgment  was  ren- 
dered. No  execution  can  be  proper  in  form,  unless, 
with  reference  to  these  particulars,  it  exactly  pursues 
the  judgment."**  The  question  of  the  effect  of  a  vari- 
ance between  the  terms  of  a  judgment  and  the  recitals 
thereof  in  the  writ  will  be  considered  in  a  subsequent 

*3  Dengler's  Appoal,  125  Pa.  St.  12;  Kalne's  Appeal,  02  Pa.  St. 
273. 

<*  Reese  v.  Burts,  39  Ga.  ~>G~);  Iliirbtower  v.  Handlin,  27  Ark.  20; 
Jennings  v.  Pray,  S  Yerg.  84;  Kneib  v.  Graves,  72  Pa.  St.  104;  Bain 
V.  Cbrisman,  27  Mo.  293;  AVilson  v.  Router,  29  Iowa,  176. 


§  42  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  184 

section.  It  is  sufficient  for  our  present  purpose  to  say 
that  the  description  contained  in  the  writ  must  be  such 
as  to  show  that  it  is  based  upon  a  ju<lgment  and  such 
that,  by  inspection  of  the  judgment  and  the  writ,  there 
can  be  no  doubt  that  the  latter  issued  upon  and  for  the 
enforcement  of  the  former.*"^  When  the  judgment  is 
in  an  action  of  an  equitable  character  and  the  officer  in 
executing  it  must  refer  to  its  terms  rather  than  the 
general  provisions  of  law  regulating  his  duties,  it  is 
often  advisable  to  insert  or  otherwise  make  a  part  of 
the  writ  a  full  and  complete  copy  of  the  judgment,  thus 
excluding  all  contention  that  the  execution  does  not 
conform  thereto.**  An  execution  against  a  man  in  his 
private  capacity  cannot  properly  issue  on  a  judgment 
against  him  as  administrator;  and  a  sale  thereunder 
has  been  held  to  pass  no  title.  A  judgment  in  favor  of 
one  as  administrator  or  executor  may  support  an  exe- 
cution issued  in  his  favor  without  mentioning  his  rep- 
resentative capacity,  when  the  notes  on  which  the 
judgment  was  entered  w^ere  made  to  him  in  such 
capacity,  because  in  that  event  the  title  to  the  property 
and  judgment  is  vested  in  him  personally,  and  all  pro- 
ceedings thereon  may  properly  be  conducted. in  his 
name.*'^  It  is  no  objection  to  an  execution  that  it 
issues  in  favor  of  plaintiff  as  administrator,  without 
saying  of  whom.'*^"^  The  omission  of  plaintiff's  name 
from  the  body  of  the  writ  does  not  make  it  a  nullity, 
where  the  indorsement  shows  who  were  tlie  parties  to 
the  suit.'*^     So,  in  regard  to  the  number  of  the  plain- 

4B  Brown  v.  Duncan.  132  111.  41,",,  22  Am.  St.  Hep.  545; 'Anderson 
V.  Gray,  134  111.  550,  23  Am.  St.  Rep.  GOG. 
46  Burkett  v.  Clark,  46  Neb.  4G0. 
*^  Moughon  v.  Brown,  08  Ga.  207. 
*«  Saffold  V.  Banks.  69  Ga.  280. 
<»    McGiiire  v.  (ialligan,  53  Micli.  453. 


185  TllK  FOllM  OF  THE  ORIGINAL  KXECUTION.  §  42 

tiffs,  tlic  oxociitioii  should  aj^rre  Avitli  the  judgment, 
and  not  on  any  accounl  specify  more  nor  less  names 
than  are  to  be  found  in  the  judgment  entry.''"  In  Ala- 
bama it  was  held  that  an  execution  issued  by  a  justice 
of  the  peace  was  void  upon  its  face,  because  it  failed  lo 
show  in  whose  favor  it  was  issued,  although  the  en- 
dorsement on  the  back  thereof,  if  it  could  be  deemed  a 
part  of  it,  would  have  aided  this  fatal  defect/'^  Assum- 
ing that  the  endorsement  is  not  a  part  of  the  writ,  this 
decision  was  probably  correct.  Where,  however,  in 
the  body  of  the  writ  there  is  a  mistake  in  designating 
the  name  of  the  plaintiff,  the  writ  is  not  thereby  ren- 
dered invalid  if  the  judgment  is  otherwise  sufficiently 
and  accurately  described,  and  there  can  hence  be  no 
doubt  who  is  the  person  entitled  to  the  benefit  of  the 
execution.'"'^ 

It  is  indispensable  that  the  execution  should  show 
upon  whose  property  it  is  to  be  levied.  If  it  does  not, 
it  is  worthless,  and  cannot  supi)ort  title  derived 
through  a  sale  thereunder.-"'-'  The  execution  must,  on 
its  face,  appear  to  be  against  all  the  defendants,  not- 
witlistanding,  from  dt-ath,  bankru])tey,  or  some  other 
cause,  no  levy  can  be  made  on  the  property  of  some.®^ 

BO  Tanner  v.  Grant,  10  r.nsh.  ;}(V2;  Ilonio  y.  Spivoy.  44  Ga.  010; 
Palmer  v.  Palmer,  2  Couu.  4()2;  Wilson  v.  :McGee,  2  A.  K.  Marsh. 
000;  Beazley  v.  Dunn,  8  Rich.  345;  Brown  v.  Duncan,  132  111.  413, 
22  Am  St.  Itep.  545. 

Bi  Cooper  V.  Jacobs,  S2  Ala.  411. 

62  Griffith  V.  Milwaukee  II.  Co..  02  la.  034,  54  Am.  St.  Rep.  573. 

5:-.  Doushis  V.  Wliiting,  28  111.  302. 

64  Linn  V.  Hamilton,  34  N.  .1.  L.  305:  S.tuiidors  v.  Gallalier,  2 
Humph.  445;  Farmers'  and  Mechanics'  National  Banlv  v.  Crane,  15 
Abb.  Pr..  N.  S.,  434;  Clarke  v.  Clement.  0  Term  Kep.  525;  Kaynes  v. 
Jones.  0  Mees.  &  W.  104;  1  Dowl.,  N.  S.,  .S73;  0  .Tur.  133;  .Tohnsti  * 
V.  Lynch.  3  Bibb.  334;  Erwin's  Lessee  v.  Dundas,  4  How.  58;  Brin- 
lon  V.  Gen-y.  7  111.  App.  2:?8;  Slieetz  v.  Wynkoop.  74  Pa.  St.  1!)8; 
Conn  V.  Pender,  1  Smedes  &  M.  380;  Shaffer  v.  Watkins,  7  Watts  & 


§  4-2  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  18i> 

The  exeeutiou  ought  also  to  state  the  name  of  each 
defendant  as  it  is  set  forth  in  the  judgment.  If  tb(^ 
name  be  incorrectly  stated  in  tlie  judgment,  there  is 
notj  until  tlie  judgment  is  amended,  any  authority  for 
execution  against  defendant  in  his  true  uame.^^  An 
execution  in  the  name  of  AMlliam  Barnes,  guardian,  is 
not  supported  by  a  judgment  in  the  name  of  Charity, 
Penelope,  and  Sarah  Newsom,  by  their  guardian,  AVil- 
liam  Bnrnes.^  It  is  indispensable  that  the  amount  to 
be  collected  should  be  specified  in  the  writ;  otherwise 
the  officer  has  no  authority  to  collect  anything,  nor  to 
make  any  levy  or  sale."*''  In  an  action  against  a  sheriff 
for  his  failure  to  return  an  execution,  he  claimed  that 
it  was  void  in  various  respects,  among  which  was  that 
it  did  not  state  the  amount  of  the  judgment  or  the 
amount  actually  due  thereon.  In  overruling  his  con- 
tention and  determining  him  to  be  liable  notwithstand- 
ing the  defects  in  the  writ  the  court  said:  "It  is  true 
that  neither  the  amount  of  the  judgment  nor  the 
amount  actually  due  thereon  is  stated  in  such  manner 
as  that  the  exact  amount  either  due  or  for  which  the 
judgment  was  rendered  can  absolutely  and  without 
doubt  be  ascertained,  but  it  is  certain  that  the  sheriff 

R.  219;  Cumberland  Coal  Co.  v.  Jeffries,  27  :Md.  .520;  Mortland  v. 
Ilimes,  8  Pa.  St.  2G.j;  Lee  v.  Crossna,  6  Humph.  281.  The  writ 
should  also  issue  in  the  namrs  of  all  the  plaintiffs,  though  one  be 
dead.  Stewart  v.  Cunningham,  22  Ala.  626.  Omitting  the  name  of 
a  defendant  from  an  alias  writ  is  fatal  to  the  continuance  of  its  lien 
against  him.  Brem  v.  Jamieson,  70  N.  C.  567.  "Where  execxition  is 
stayed  as  against  one  defendant,  because  he  is  a  soldier,  it  may  be 
enforced  against  the  others.     Sheetz  v.  Winkoop,  74  Pa.  St.  198. 

55  Farnham  v.  Ilildreth,  32  Barb.  277;  Bank  of  United  States  v. 
McKenney,  3  Cranch  C.  C.  17:>.  But  the  insertion  of  a  middle  initial 
in  the  execution  when  there  is  none  in  the  judymeni  is  immaterial. 
Mc.Mahon  v.  Colcloiigli.  2  Ala.  68. 

56  Newsom  v.  Newsom,  4  Ired.  381. 

67  Maxwell  v.  King,  3  Yerg.  460;  "Wright  v.  Nostrand,  15  Jones  & 
S.  441. 


187  THE  FORxM  OF  THE  ORIGINAL  EXECUTION.  §  42 

was  informed  by  the  language  of  the  writ  that  the 
judgment  was  rendered  for  at  least  the  snm  of  three 
hundred  and  ninety  dollars,  which  he  was  comman«le<i 
to  make  by  levy,  distress,  and  sale  out  of  the  defend- 
ant's proi>erty.  These  imperfections  in  the  writ  could 
have  been  amended.  If  amendable,  the  writ  was  not 
void,  but  only  voidable,  and  should  have  been  served 
and  returned  by  the  sheriff."  ^**  The  amount,  when 
given,  should  not  vary  from  the  judgment.  An  execu- 
tion varying  from  the  judgment  is  irregular,  although 
the  amount  for  which  it  issues  is  less  than  that  auth(H- 
ized  by  the  judgment.^**  It  has  been  held  that  a  vari- 
ance between  the  true  date  of  the  judgment  and  that 
set  forth  in  the  execution  renders  the  latter  a  nul- 
lity; *•"  but  we  shall  hereafter  show  that  this  is  not  sus- 
tained by  authority.-  In  Massachusetts,  an  execution 
issued  by  a  justice  of  the  peace,  and  signed  by  him  in 
his  official  capacity,  recited  that  the  judgment  was  re- 
covered before  him  as  "trial  justice,"  when  there  was 
no  such  officer  known  to  the  law.  The  court  held  this 
execution  to  be  void,  because  "it  purports  to  be  on  a 
judgment  recovered  before  a  tribunal  which  then  had 
no  existence."  ®^  In  Maryland,  when  the  judgment 
was  the  result  of  proceedings  by  attachment  and  was 
for  the  seizure  and  sale  of  certain  property,  but  the 
execution  issued  was  as  if  the  judgment  had  been  a 
general  judgment  in  personam,  the  writ  was  adjudged 
to  be  void,  because  the  court  regarded  the  case  as  one 

88  Van  Cleave  v.  Bncker,  79  Cal.  COO. 

69  Webber  v.  Ilntcbins,  8  Mees.  &  W.  310:  1  Dnwl..  N.  S.,  95:  Kine 
V.  Birch.  2  Gale  &  D.  513;  Cobbold  v.  Chilver,  4  Soott  N.  R.  07S:  \ 
Dowl.,  N.  S.,  72G;  4  Man.  &  G.  162;  6  .Iiir.  346. 

«o  Cutler  V.  Wadswortb,  7  Conn.  0;  Rider  v.  Alexander,  1  D.  Chip. 
267. 

81  Palmer  v.  Crosby,  11  Gray.  40. 


^  43  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  188 

uot  of  a  misdescribed  judgment,  but  of  the  issuing  of  a 
writ  wbicli  there  was  no  judgment  to  support.^^ 

§  43.  Consequences  of  Variance  Between  the  Writ 
and  Judgment. — Tlie  decisions  in  regard  to  the  con- 
sequences of  issuing  an  execution  in  which  the  judg- 
ment on  which  it  is  based  is  misdescribed  in  one  or 
more  particuhirs  are  not  entirely  in  harmony  with  one 
another.  This  is  particularly  the  case  when  the  error 
in  the  writ  has  not  been  corrected  in  any  manner,  and 
the  officer  has  proceeded  to  make  a  levy  and  sale. 
Here  it  must  follow  that  the  error  must  be  overlooked, 
or  the  purchaser  must  be  made  to  severely  suffer  for 
that  for  which  he  is  not  justly  blamable.  There  are 
loose  remarks  in  the  early  reports,  to  the  effect  that 
an  irregular  execution  is  void,  while  an  erroneous  exe- 
cution is  merely  voidable.  No  test  is  there  or  else- 
AAhere  prescribed  by  which  to  distinguish  one  from  the 
other.  Courts  have  often,  without  any  want  of  logical 
acumen,  arrived  at  the  conclusion  that  an  execution 
issued  contrary  to  established  rules  of  practice,  or  in  a 
form  different  from  that  prescribed  by  those  rules,  is 
not  regularly  issued,  and  therefore  must  be  deemed  "an 
irregular  execution";  and  they  have,  therefore,  not 
unfrequently,  under  the  authority  of  the  loose  remarks 
just  referred  to,  held  such  executions  to  be  void.  There 
can  be  no  just  distinction  made  between  an  irregular 
and  an  erroneous  execution,  for  an  erroneous  execution 
is  necessarily  irregular,  and  an  irregular  execution  is 
necessarily  erroneous.  There  is  a  just  distinction  be- 
tween executions  issued  without  authority,  and  execu- 
tions issued  under  an  authority  which  is  erroneously 
l.ursued;  but  these  two  classes  of  executions  cannot  be 

82  Deakins  v.  Ilex,  GO  Mil.  593. 


189  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  g  43 

accurately  designated  as  irregular  aud  erroneous. 
The  former  chiss  is  void;  the  latter  may,  wilh  equal 
propriety,  be  termed  either  irregular  or  erroneous. 
When  an  execution  can  properly  issue,  a  mistake  made 
by  an  otlicer,  in  performing  the  duty  of  issuing  it,  is 
necessarily  a  mere  error  or  irregularity.  It  is,  however, 
necessary  that  an  execution  should  have  a  judgment 
to  support  it;  and  that  it  should  appear  from  the  exe- 
cution what  judgment  is  intended  to  be  enforced.  The 
reason  why  the  description  of  the  judgment  is  inserted 
in  the  writ  is,  that  the  officer  may  know  what  he  is  to 
enforce,  and  that  the  writ  may,  by  inspection,  be 
connected  with  the  authority  for  its  issuance.  When 
a  sale  has  been  made  by  a  sheriff,  we  apprehend  that 
the  purchaser  need  show,  in  support  of  his  title,  noth- 
ing except  a  judgment,  an  execution  thereon,  and  a 
sale  and  conveyance  under  such  execution.  When  the 
execution  is  offered  in  evidence,  it  may  vary  from  the 
judgment  in  some  respects,  and  correspond  with  it  in 
others.  The  question,  then,  before  the  court  is,  Did 
this  execution  issue  on  this  judgment?  If,  from  the 
whole  writ,  taken  in  connection  with  other  facts,  the 
court  feels  assured  that  the  execution  offered  in  evi- 
dence was  intended,  issued,  and  enforced  as  an  execu- 
tion upon  the  judgment  shown  to  the  court,  then  we 
apprehend  that  the  writ  ought  to  be  received  and 
respected.^     When    an   execution   is   not   in   proper 

63  Hunt  V.  Ix)ucks.  38  Cal.  372.  99  Am.  Dec.  404;  Miles  v.  Knott, 
12  Gill  &  J.  442;  McCoIlum  v.  Ilubbort.  13  Ala.  2S2,  48  xVm.  Dec.  56;  ' 
Doe  V.  Gildavt,  4  IIotv.  (^fis.'s.)  2C!7:  Barker  v.  riaiiters'  Bank,  .'  How. 
(Miss.1  ."GO;  Keeler  v.  Neal.  2  Watts,  424;  Durham  v.  Ileaton.  28  111. 
2G4,  81  Am.  Dec.  27.1;  Graham  v.  Trice,  3  A.  K.  Marsh.  522,  13  Am. 
Deo.  109;  .Tnckson  v.  Streeter.  5  Cow.  529;  Ilealy  v.  Preston.  14  How. 
Pr.  29;  Jackson  v.  Walker.  4  Wend.  462;  Jackson  v.  Anderson,  4 
Wend.  474;  Sprott  v.  Reid,  3  G.  Greene,  489,  56  Am.  Dec.  549;  Jack' 
eon  V.  Davis,  18   Johns.  7;  Corbin  v.  Pearce,  81    111.    461;    Hall  v. 


§  43  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  190 

form,  or  when  it  misrecites  the  judgment,  as  no  one 
]>ut  the  defendant  can  be  injured,  no  one  but  he  ought 
to  be  allowed  to  complain;  *^*  and  his  complaints  ought 
not  to  be  heard  when,  by  his  apathy,  he  has  allowed  the 
rights  of  third  persons  to  attach  themselves  to  the  exe- 
<ution,  or  even  when  he  has  allowed  plaintiff  to  be 
placed  in  a  worse  situation  than  though  prompt  com- 
])laint  had  been  made.  Where  sufficient  appeared  on 
the  face  of  the  execution  to  connect  it  with  the  judg- 
ment, courts  have  frequently  disregarded  variances  in 
the  names  of  the  parties,**^  in  the  date,^**  or  in  the 
amount  of  the  judgment.'^^     Hence  it  is  no  objection  to 

inagett,  63  Md.  57;  Davis  v.  Kline,  76  Mo.  310;  Jones  v.  Dove,  7  Or. 
467;  De  Loach  v.  Robbins,  102  Ala.  288,  48  Am.  St.  Rep.  46;  Waxel- 
baum  V.  Connor,  94  Ga.  529;  Anderson  v.  Gray,  134  111.  558,  23  Am. 
St.  Rep.  696;  Wright  v.  Nostrand,  94  N.  Y.  47. 

64  Swigsart  v.  Harber,  4  Scam.  364,  39  Am.  Dec.  418;  Harlan  v. 
Harlan,  14  Lea,  107;  Chapman  v.  Dyett,  11  W^end,  31,  25  Am.  Dec. 
598;  Mitchell  v.  Toole,  63  Ga.  95;  Wright  v.  Nostrand,  94  N.  Y.  47. 

65  Barnes  v.  Hayes,  1  Swan,  304;  Blake  v.  Blanchard,  48  Me.  297; 
Lee  V.  Cix)ssna,  6  Humph.  281;  Hayes  v.  Bernard,  38  111.  297;  Couch 
V.  Atkinson,  32  Ala.  633;  Morse  v.  Dewey,  3  N.  H.  535;  Thornton  v. 
Lane,  11  Ga.  459;  Lewis  v.  Avery,  8  Vt.  289,  30  Am.  Dec.  469; 
Holmes  V.  Mclndoe,  20  Wis.  657;  Anderson  v.  Gray,  134  111.  550,  23 
Am.  St.  Rep.  696. 

66  Perkins  v.  Spaulding.  2  Gibbs,  157;  Stewart  v.  Severance.  43 
Mo.  322,  97  Am.  Dec.  392;  Bank  of  W^hitehall  v.  Pettis,  13  Vt.  395, 
37  Am.  Dec.  600;  Brown  v.  Betts,  13  Wend.  30;  Liedig  v.  Rawson, 
1  Scam.  272,  29  Am.  Dec.  354;  Hull  v.  Blaisdell,  1  Seam.  332;  Swift 
v.  Agnes,  33  Wis.  228;  Alexander  v.  Miller,  18  Tex.  893,  70  Am.  Dec. 
314;  Mollison  v.  Eaton,  16  Minn.  426;  Millis  v.  Lombard,  32  Minn. 
259;  Nims  v.  Spurr,  138  Mass.  209;  Dailey  v.  State,  56  Miss.  475; 
Davis  v.  Kline,  76  Mo.  310;  Franklin  v.  Merida,  50  Cal.  289;  Stevens 
V.  Roberts,  121  Mass.  555;  Drawdy  v.  Littlefield,  75  Ga.  215;  Steele 
V.  Cochran,  88  Ga.  296;  Mooncy  v.  Moriarity,  36  111.  App.  175; 
Friedlander  v.  Fenton,  180  111.  312. 

<■>-!  Grim  v.  Adkins,  21  Ind.  App.  106;  Harris  v.  Alcock,  10  Gill  &  J. 
226,  32  Am.  Doc.  1.58;  Marshall  v.  Green,  1  S.  W.  Rep.  602  (Ky.  App); 
Perry  v.  Whipple,  38  Vt.  278,  where  the  variance  was  twenty-five 
couts;  Sanders  v.  Ky.  Ins.  Co.,  4  Bibb,  471,  where  the  variance  was 
one  cent;  Doe  v.  Rue.  4  Blackf.  263,  20  Am.  Dec.  368,  where  execution 
(or  $25.06  issued  on  judgment  fur  .$24.34;  Trotter  v.  Nelson,  1  Swan, 


191  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  43 

an  execution  that  the  cai)acity  of  the  plaintiffs  is  mis- 
described.  Thus  it  was  said  in  the  case  of  Holmes  v. 
Jordan,  163  Mass.  loT:  ''The  only  objection  argued  is 

7,  where  execution  for  $319.0G  issued  on  judgment  for  $32-8.18;  Cun- 
ningham V.  Felker,  2G  Iowa,  117,  where,  on  judgment  for  $201  debt 
and  $7.15  costs,  execution  issued  for  $201.50  debt  and  $8.40  costs; 
Jaclison  V.  I'ratt,  10  Johns.  oSl;  Pecli  v.  Tiffany,  2  X.  Y.  4.51;  Peet 
V.  CJowenhoven,  14  Abb.  Pr.  50,  where  execution  was  for  $100  more 
tlian  due  on  judgment;  Brace  v.  Show,  10  B.  Mon.  43,  where  execu- 
tion omitted  interest  given  bj*  ihe  judgment;  Avery  v.  Bowman,  40 
N.  II,  453,  77  Am.  Dec.  72S;  Jackson  v.  Walker,  4  Wend.  4G2; 
Becker  v.  Quigg,  54  111.  390;  Jackson  v.  Page,  4  Wend.  588;  Parm- 
lee  V.  Hitchcock,  12  Wend.  00,  where  it  was  held  to  be  the  duty  of 
the  sheriff  to  execute  a  writ  for  $180.71,  though  the  judgment 
whereon  the  writ  issued  was  for  $133.50;  Miles  v.  Knott,  12  Gill  & 
J.  442,  where  the  judgment  was  for  $235,831-3,  and  the  writ  for 
.y_'05.83  1-3;  Durham  v.  Heaton,  28  111.  204,  where  execution  for  $4,- 
U3.50  issued  on  judgment  for  $3,441.41;  Dickens  v.  Crane,  33  Kan. 
;;44,  where  the  judgment  was  for  $102.12  and  $73.20  costs,  and  the 
writ  for  1.02  12  and  costs  7.3,20;  Warder  v.  Millard,  8  Lea,  581, 
wliere,  on  a  judgment  for  five  hundred  and  thirty-four  dollars,  a 
writ  issued  for  five  and  thirty-four  dollars;  Williams  v.  Ball,  52 
Tex.  GIO,  30  Am.  Rep.  730,  where  execution  issued  for  $13.37  on  a 
judgment  for  $12.50.  The  case  in  which  the  largest  variance  In 
amount  has  occurred,  so  far  as  we  know,  is  that  of  Hunt  v.  Loucks, 
.■;S  Cal.  372,  00  Am.  Dec.  404.  This  case  M'as  an  action  of  ejectment, 
in  which  the  execution  was  offered  in  evidence  as  part  of  the  plain- 
tiff's claim  of  title.  We  give  the  following  extracts  from  the  opin- 
ion of  the  court,  delivered  by  Judge  Sanderson:  "The  ground  of  the 
first  objection  was,  that  the  execution  called  for  $095  more  than 
the  face  of  the  judgment.  Was  it  for  that  reason  void,  and  there- 
fore the  sale  also?  We  think  it  was  only  voidable,  and  therefore 
the  sale  valid. 

"It  cannot  be  denied  that  to  sustain  a  title  founded  upon  a  sher- 
iff's sale,  a  judgment  must  be  produced;  an  execution,  which  the 
judge  can  aflirm,  was  issued  upon  the  judgment  produced,  and  a 
deed  which  was  given  in  pursuance  of  the  execution  and  the  sale 
under  it.  Unless  It  appear  that  the  judgment,  execution,  and  deed 
are  links  of  the  same  chain,  the  title  Avill  fail.  But  a  question  of 
variance  between  them  must  not  be  confounded  with  the  (luestion 
of  their  validity.  The  two  propositions  are  quite  separate  and  dis- 
tinct. The  former  is  a  question  of  identity  only;  tlie  latter  assumes 
or  concedes  the  identity,  and  goes  only  to  the  vallility  of  the  sus- 
pected instrument.  If  the  execution  differs  so  materially  from  the 
judgment  that  the  judge  cannot  affirm  that  the  former  was  Issued 


§  43  THE  FOIIM  OF  THE  ORIGINAL  EXECUTION.  192 

that  the  execution  is  not  supported  by  the  judgment, 
because  tlie  judgment  was  recovered  by  the  plaintiffs 
in  an  action  of  contract,  Avhen  in  tlie  writ  they  were 

upon    the  latter,  his  couc-lusiou  is,  not    that   the  execution    is  void, 
but  that  it  was  not  issued  upon  the  judgment  which  has  been  ex- 
hibited Avith  it.     The  conditions  upon  Avhich  the  two  questions  arise   , 
are  not  ouly  different,  but  tlie  question  of  void  or  voidable  does  not 
arise  until  the  question  ot  variance  has  been  considered. 

"That  this  execution  was  issued  upon  the  judgment  which  was 
exhibited  with  it  does  not  admit  of  a  rational  doubt.  The  recitals 
in  the  execution  correspond  with  the  judgment  in  every  particular, 
except  as  to  the  amount;  the  court,  the  date,  the  parties,  the  gen- 
eral character  of  the  judgment,  are  all  correctly  stated  in  the  exe- 
cution; and  it  is  not  pretended  that  there  is,  or  was,  any  other  judg- 
ment of  the  same  court,  of  the  same  date,  between  the  same  parties, 
and  of  the  same  general  .character  upon  which  the  execution  coiild 
have  been  issued.  Such  being  the  case,  there  is  no  rational  ground 
for  saying  that  the  judgment  and  execution  are  not  parts  of  the 
same  judicial  proceedings;  and  we  do  not  understand  counsel  as 
disputing  this  proposition,  but  as  conceding  it,  and  insisting  only 
that  the  execution  is  void,  because  it  calls  for  too  much  money. 

"That,  as  a  general  rule,  an  execution  must  follow  the  judgment, 
and  conform  to  it,  and  that  if  it  varies  materially  from  it,  it  will 
be  set  aside,  or  quashed,  or  amended,  as  the  case  may  be,  upon  the 
motion  of  the  parties  to  it,  who  are  prejudiced  by  the  error,  is  un- 
doubtedly true,  as  appears  by  the  cases  cited  by  counsel.  But  that, 
and  nothing  more,  being  shown,  we  have  made  but  little  progress  in 
the  present  case.  The  question  is  not  as  to  what  the  court  would 
have  done  with  this  execution  if  the  defendants  in  the  judgment 
had  moved  to  set  it  aside,  to  quash,  or  amend  it,  as  they  might  have 
done.  If  such  was  the  question,  it  could  be  readily  answered.  The 
court  would  not  have  set  it  aside,  but  would  have  allowed  it  to  be 
amended  so  as  to  conform  to  the  judgment;  that  is  to  say,  it  would 
have  quashed  it  only  as  to  the  excess.  Stevenson  v.  Castle,  1  Chit. 
P,4n;  King  v.  Harrison,  IT)  East,  m.l;  ]\rorrys  v.  T^ake,  8  Term  Rep. 
41G,  note  a;  McCollum  v.  Hubbert,  13  Ala.  282.  48  Am.  Dec.  56. 
But  quite  a  different  question  is  here  presented— one  which  rests 
upon  entirely  different  conditions,  and  involves  altogether  different 
principles.  It  is  as  to  what  ought  to  be  done  with  such  an  execu- 
tion when  it  comes  before  the  court  collaterally  as  evidence  of  title 
in  an  action  which  is  not  even  between  the  parties  to  the  execution, 
but  betAveen  entire  strangers  to  it,  and  Avhere  it  is  not  pretended 
that  the  execution  was  ever,  at  any  time,  even  after  the  sale,  set 
aside  upon  the  application  of  the  parties  avIio  alone  were  injurel  by 
the  error."     His  honor  next  proceeded  to  consider  various  instances 


li)3  TUE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  43 

described  as  executors  of  the  will  of  Oliver  Ames, 
whereas  the  execution  recites  a  recovery  by  them  per- 
sonally.    It  appears  from  the  record  that  the  defect  is 

of  void  and  voidable  exoculious,  and  the  method  by  which  the  lat- 
ter could  be  avoided.  lie  also  referred  to  various  cases  involving 
variances  betvpeon  judgments  and  executions,  and  closed  as  fol- 
lows: "We  regard  the  foregoing  cases  as  establishing,  beyond  a  ra- 
tional doubt,  the  proposition  that  an  execution  which  is  amendable 
Is  not  void,  and  that  an  execution  whith  merely  calls  for  too  much 
money  is  amendable.  It  is  true  that  the  difference  between  the 
judgments  and  executions  were  not  so  great  as  in  the  present  case, 
but  no  reference  was  made  in  any  of  them  fo  the  maxim,  De  mini- 
mis non  curat  lex,  nor  has  that  maxim,  for  olivlous  reasons,  any 
application  to  questions  of  this  character;  it  goes  only  to  the  ques- 
tion whether  the  amount  in  dispute  is  too  trifling  to  attract  the  eye 
of  the  court,  and  in  no  respect  illustrates  or  controls  a  question  of 
void  or  voidable  process.  To  allow  the  amount  of  the  excess— as 
much  or  littk^— to  affect  such  a  question  is  not  only  to  invoke  a  prin- 
ciple wholly  irrelevant  to  it,  but  to  proclaim  that,  in  relation  to  a 
most  important  matter,  there  is  no  settled  rule;  that  if  there  is  any 
variance  at  all,  that  circumstance  does  not  establish  the  character 
of  the  execution  as  void  or  voidable,  but  its  character  must  depend 
upon  the  varying  notions  of  judges  as  to  what  is  or  is  not  a  trifle, 
which  is  to  say,  that  the  validity  of  judicial  process  is  not  to  depend 
upon  established  rules  of  law,  but  upon  judicial  discretion;  or  in 
other  words,  the  purchaser  is  not  to  be  told,  in  round  terms,  which 
he  can  understand,  that  the  execution  is  or  is  not  void,  and  that 
he  will  or  will  not  get  a  title  if  he  buys,  but  tliat  if  he  buys  he  must 
take  the  chances,  and  wait  until  his  title  comes,  as  it  surely  will, 
before  the  judicial  eye,  for  inspection,  when  he  will  be  fully  in- 
formed as  to  what,  in  his  case,  is  a  trifle  or  is  not,  and  that  accord- 
ingly he  has  or  has  not  got  a  title.  If  it  be  the  policy  of  the  law  to 
uphold  judicial  sales,  we  know  of  no  way  by  which  that  policy  can 
be  more  efreciually  defeated  than  by  the  adoption  of  such  a  rule  of 
lecisdon.  We  say  adoption,  because  we  are  certain  that  no  such 
ule  yet  exists.  The  cases  to  which  we  have  referred  make  no 
m(>ntion  of  such  a  rule;  they  all  procei'd  upou  the  theory  that,  in 
respect  to  mere  variances  between  the  judgment  and  the  execu- 
tion, the  latter  is  amendable,  and  is,  therefore,  not  void,  but  void- 
able only. 

"That  executions  which  are  merely  voidable  cannot  be  attacked 
collaterally  admits  of  no  debate,  where,  as  in  this  state,  the  com- 
mon law  controls  the  question.  A  collateral  attack  can  no  more  be 
made  upon  an  erroneous  execution  than  upon  on  an  erroneous  judg- 
ment. Like  an  erroneous  judgment,  an  erroneous  execution  is 
Vot.  1.-13 


§  43  Till':  FORM  OF  THE  ORIGINAL  EXECUTION.  104 

merely  a  clerical  error,  and  amendment  would  be  al- 
lowed, as  of  course,  from  the  record  without  other  evi- 
dence. Under  such  circumstances  the  writ  may  be 
treated  as  amended  in  this  proceeding."  The  same 
course  must  be  taken  when  it  appears  that  there  is  a 
variance  in  describing  the  court  in  which  the  judgment 
was  entered.  This  is  only  one  of  several  elements  of 
description,  and  if,  from  the  whole  record,  it  appears 
that  the  judgment  was  that  of  a  court  different  from 
the  one  named  in  the  writ,  it  would,  on  application, 
be  amended  so  as  to  correct  the  clerical  error,  and, 
whether  amended  or  not,  such  error  is  not  sufficient 
to  invalidate  the  writ  or  any  proceedings  taken  there- 
under.*^ 

In  Delaware,  a  judgment  was  recovered  for  four  hun- 
dred dollars,  paj^able  in  three  annual  instalments.  An 

valid  until  set  aside  upon  a  direct  proceeding  brought  for  that  pur- 
pose; and  until  set  aside,  all  acts  which  have  been  done  under  it 
are  also  valid.  In  a  collateral  action,  it  cannot  be  brought  in  ques- 
tion, even  by  a  party  to  it,  much  less,  as  in  this  case,  by  a  stranger 
to  it.  Even  directly  it  cannot  be  attacked  by  a  stranger,  for  it  does 
not  lie  in  the  mouth  of  A  to  say  by  it  B  has  been  made  to  pay  too 
much  money,  and  that  therefore  all  proceedings  under  it  are  null 
and  void.  That  it  is  a  question  which  concerns  B  only,  and  if  he  is 
content,  A  cannot  complain.  Nor  if  B,  who  is  bound  to  know  of 
the  variance  between  the  "judgment  and  the  execution,  does  not  in- 
terpose by  motion  for  its  correction,  ought  he  to  be  allowed  to  ques- 
tion the  title  of  a  purchaser  under  it— it  may  be  years  afterward? 
He  has  a  remedy,  by  motion  to  amend,  or  by  action  to  recover  the 
excess  of  the  levy  from  the  plaintiff  in  the  execution,  and  the  clerk 
also;  besides,  Avith  full  kuowlodge  of  all  defects,  he  has  allowed 
the  sheriff,  acting  as  his  agent  in  the  matter,  to  sell,  and  the  pur- 
chaser to  buy,  without  opening  his  lips,  and  in  all  fairness  and  jus- 
tice to  the  latter,  he  must  keep  them  closed  forever."  But  in  Hast- 
ings V.  .Tohnsou,  1  Nev.  (>13,  and  Collais  v.  ilcLeod,  8  Irod.  221,  4t) 
Am.  Dec  .376,  executions  materially  in  excess  of  the  judgments  on 
wliich  they  issued  were  adjudged  to  be  void. 

Gs  Slackhouse  v.  Zuntz.  41  Da.  Ann.  41. j;  Abels  v.  Westervelt,  15 
Abb.  Pr.  236;  AVright  v.  Xostrand,  94  N.  Y.  31,  4S;  Ross  v.  Shurtleff, 
55  Vt.  177. 


195  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  4^ 

execution  on  this  judgment  issued  for  the  whole,  when 
a  part  only  was  due,  and  was  levied  on  the  i^roperty 
of  the  defendant.  This  writ  was  claimed  to  be  void, 
but  the  court,  nfter  argument,  admitted  it,  saying: 
"The  distinction  is  between  void  and  voidable  process; 
between  such  as  is  merely  irregular  and  such  as  is  ab- 
solutely void.  Process  issued  on  a  judgment  payable 
by  instalments,  after  any  of  them,  but  before  all  of 
them,  are  due,  and  commanding  the  sheriff  to  levy 
the  whole  debt,  would  be  merely  irregular,  and  it 
would  not  be  competent  for  any  one  collaterally  to 
question  it,  and  much  less  the  sheriff  who  executes  it; 
but  it  is  even  doubtful  whether  the  writ  is  irregu- 
lar." ^  There  must,  however,  in  each  case,  be  suffi- 
cient to  convince  the  court  that  the  judgment  offered 
in  evidence  and  that  attempted  to  be  recited  in  the 
execution  are  one  and  the  same.  Hence,  where  the 
judgment  offered  in  evidence  Avas  rendered  in  a  dif- 
ferent year,  and  for  a  different  amount  from  that  re- 
cited in  the  execution,  and  no  proof  was  offered  to 
show  that  but  one  judgment  had  been  rendered  be- 
tween the  parties,  the  variance  was  regarded  as  fatal."** 
A  similar  result  followed  where  there  was  a  variance 
in  the  names  of  the  parties  and  in  the  amount  of  the 
judgment.'^  *^ 

In  North  Carolina  it  was  held  that  a  fieri  facias  for 
an  amount  in  excess  of  that  warranted  by  the  judg- 
es state  V.  riatt,  5  Harr.  (Del.)  429. 

70  Harmon  v.  Laiued,  OS  111.  107. 

71  Crittenden  v.  Leitensdorfer,  35  Mo.  239.  In  this  case  the  judg- 
ment recited  in  the  execution  was  in  favor  of  Robert  Cauipbcll, 
surviving  partner  of  William  and  Robert  Campbell,  against  Eugene 
Leitensdorfer,  Jacob  Haughton,  Antoine  Vien,  Aaron  Bowers,  and 
Euphrosine  Leitensdorfer,  for  $7,000.70.  The  judgment  offered  in 
evidence  was  in  favor  of  William  and  Robert  Campbell  against 
Eugene  Leitensdorfer  and  Jacob  Haughton,  for  $7,070. 


§  43  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  196 

ment  is  void."-  In  consequence  of  these  decisions,  the 
loj^islatnre  interposed  by  an  enactment  declaring  that 
Avhere  land  had  been  sold,  or  might  thereafter  be  sold, 
by  virtue  of  any  execution,  no  variance  between  the 
execution  and  the  judgment,  either  in  the  sum,  or  in 
the  manner  in  which,  or  in  the  time  when,  it  is  due, 
shall  invalidate  the  title  of  the  purchaser.  This  act, 
Tliough  mentioning  no  other  property  but  land,  was 
construed  as  equally  applicable  to  sales  of  personalty, 
because  they  were  within  the  mischief  intended  to  be 
corrected  by  the  act,  and,  since  this  enactment,  exe- 
cutions are  not  more  seriously  affected  by  variances 
between  them  and  the  judgments  on  which  they  were 
founded  than  if  they  were  issued  in  some  other  state.'^^ 
In  Georgia,  the  rule  that  the  execution  must  conform 
to  the  judgment  on  w'hich  it  was  based  is  very  in- 
llexible,""*  at  least  when  sought  to  be  applied  to  pro- 
ceedings to  vacate  or  avoid  a  levy.  Thus,  where,  on  a 
judgment  against  the  "Water  Lot  Company  of  the 
city  of  Columbus,"  a  fieri  facias  issued  against  the 
Water  Lot  (^'ompany,  a  motion  to  dissolve  the  levy  was 
granted.''^  The  decisions  in  this  state  are  doubtless 
due  to  the  peculiar  and  stringent  language  of  its  code. 
Section  30.30  declares  that  "all  executions  must  fol- 
low the  judgment  from  which  they  issued,  and  de- 
scribe the  parties  as  described  in  such  judgment"; 
and  section  3495  is  as  follows:  "A  fieri  facias  may  be 
amended  so  as  to  conform  to  the  judgment  from  which 

-2  Coltraine  v.  McCaine,  3  Dev.  308,  24  Am.  iJec.  25G;  Walker  v. 
Marshall,  7  Ired.  1,  4.5  Am.  Dec.  502. 

73  Rutherford  v.  Raburn,  19  Ired.  144;  Hlnton  v.  Roach,  95  N.  C. 
106;  Wilson  v.  Taylor,  98  N,  C.  275;  Marshburn  v.  Lashlle,  122  N. 
G.  237. 

74  Bradley  v.  Sadler,  57  Ga.  191;  Manry  v.  Shepperd,  57  Ga.  08. 

75  Bradford  v.  Water  Lot  Co.,  58  Ga.  280. 


197  TllK  FUUM  OF  THE  OliK^lNAL  EXECUTION.  S  4:{ 

it  issued,  and  also  at  the  time  of  its  return;  but  if 
such  tieri  facias  be  levied  at  the  time  of  the  amend- 
ment, such  levy  must  fall;  still  the  amended  fieri  facias 
may  be  re-executed."  Under  the.infiuence  of  these  sec- 
tions, it  has  been  held  that  when  a  judgnieut  is  against 
a  partnership,  an  execution  against  such  partnership*, 
and  also  against  its  individual  members,  must  be 
quashed,  and  the  levy  thereunder  annulled.'^ 

Where  a  variance  exists  between  an  execution  and  a 
judgment  offered  in  support  of  it,  the  safer  course  is  to 
show  by  some  proof  aliunde  that  the  former  was  in 
fact  issued  to  enforce  the  latter.  In  Texas,  when  an 
execution  against  P.  B.  Clements  and  a  judgment 
against  J.  P.  Clements  were  put  in  evidence,  without 
any  testimony  to  connect  them,  the  court  refused  to 
assume  that  these  two  names  were  intended  to  desig- 
nate the  same  person,  and,  therefore,  held  that  the 
judgment,  execution,  and  a  sale  thereunder  were  not, 
in  the  absence  of  such  evidence,  suilicient  to  divest  the 
title  of  J.  P.  Clements.'''  In  this  case,  the  judgment 
was  one  establishing  a  lien,  and  directing  the  sale  of 
certain  specifically  described  lands  for  its  satisfaction. 
The  execution  conformed  to  the  judgment  in  date,  in 
amount,  in  the  names  of  plaintiff,  and  in  the  descrip- 
tion of  the  lands  to  be  sold ;  and  therefore  nothing  less 
than  highly-developed  judicial  blindness  could  have 
failed,  in  the  absence  of  other  evidence,  to  see  that  the 
execution  in  question  issued  upon  the  judgment  offered 
to  support  it.  Following  this  decision,  it  was  held 
that  an  execution  omitting  the  name  of  one  of  the 
plaintiffs  was  not  only  unauthorized,  but,  further, 
"that  a  sale  and  deed  made  under  it  cannot  be  sus- 

79  Olaj-ton  V.  May.  ns  (J a.  27. 
■n  BatUe  v.  Guedry,  5S  Tex.  111. 


§  43  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  198 

tained.'*  The  tendencj^  to  mitigate  tlie  Judicial  sever- 
ity respecting  executions  in  this  state  is  manifested  in 
a  later  decision.  A  clerk,  without  any  authority  to 
do  so,  had  stated  in  a  writ  that  it  was  issued  "for  the 
use  of  Tom  Chirk,"  basing  his  action  upon  the  ground 
that  Clark  had  i^urchased  the  judgment  and  was  equi- 
tably entitled  to  the  proceeds  of  the  writ.  The  court 
said  that  the  clerk  had  no  authority  to  issue  execution 
in  that  manner,  but  declared,  quite  rationally,  that 
"the  unauthorized  insertion  in  the  execution  of  the 
words  'f(»r  his  use'  should  be  treated  as  surplusage,  and 
disregarded."  '^''* 

Doubtless,  parol  evidence  may  properly  be  received 
to  show  or  explain  a  mistake  made  in  issuing  an  exe- 
cution, and  to  establish  the  fact  that  it  was  made 
upon  a  judgment  from  which  it  varies  in  some  particu- 
lars.^** On  the  other  hand,  the  failure  to  produce  such 
evidence  may  justify'  the  court  in  disregarding  a  pro- 
ceeding under  execution  on  the  ground  that  it  is 
not  shown  that  the  person  or  corporation  against 
which  the  writ  issued  is  the  same  as  that  upon  whose 
property  it  was  levied.  Upon  a  judgment  and  execu- 
tion against  the  Florida  Central  Kailroad,  real  property 
belonging  to  the  Florida  Central  Railroad  Company 
was  levied  upon  and  sold.  It  was  held  that  the  sale 
could  not  be  supported,  in  the  absence  of  evidence  that 
the  corporation  whose  property  was  sold  "was  the 
party  defendant  in  the  suit  in  which  such  judgment 
was  rendered,  and  was  the  corporation  meant  and  in- 
tended in  such  judgment.^^ 

78  Cleveland  v.  Simpson,  77  Tex.  96. 

79  Q-wens  v.  Clark,  78  Tex.  547. 

8o.Tennin;?s  v.  Carter,  2  Wend.  440.  20  Am.  Deo.  03.5. 
«i  L'Engle  v.  Florida  Central  etc.  K.  li.  Co.,  21  Fla.  353. 


i9'J  THE  B'ORM  OF  THE  ORIGINAL  EXECUTION.  §  43 

The  chief  object  in  describing  the  judgment  in  the 
vvri*:  is  to  refer  the  ofticer  and  others  to  the  authority 
under  whicli  he  acts,  and  to  advise  him  what  must  be 
done  to  produce  full  satisfaction.  Th(,'  question,  as  we 
have  already  intimated,  is  one  of  identity  merely;  and 
if,  from  the  records,  or  from  any  other  competent  evi- 
(h'uce,  the  court  is  convinced  that  the  writ  was  in- 
tended to  be  issued  uj^on  a  valid  judgment  produced 
in  evidence,  it  is  not  void,  though  it  misnames  the 
judgment  creditor,^"  or  omits  part  of  the  name  of  a 
corporation  plaintiff,****  or  transposes  the  names  of 
plaintiff  and  defendant.**^  If  the  judgment  is  against 
a  company  or  partnership,  it  is  not  fatal  that  there 
is  a  variance  between  it  and  the  execution  in  the  per- 
sons comprising  the  firm,  w^here  the  property  sold  was 
the  property  of  the  company  and  not  of  its  individual 
members,  and  the  variance  is  sought  to  be  urged  in  a 
collateral  suit.**^ 

In  some  instances,  officers  subj.ctt'd  to  some  action 
on  account  of  their  failure  to  perform  their  official 
duty  under  a  writ  have  sought  to  escape  liability  by 
urging  that  it  did  not  conform  to  the  judgment  and 
was,  therefore,  unauthorized.  Where  the  proceeding 
against  the  officer  is  of  a  penal  character  and  may,  if 
sustained,  result  in  amercing  him  in  a  substantial 
sum  when  it  appears  that  no  injury  has  been  suffered 
by  plaintiff,  it  is  possible  that  a  strict  regularity  in 
the  writ  may  be  insisted  upon,  and  that  the  officer  will 
not  be  subjected  to  liability  whore  the  writ  is  irregular 
in  not  properly  describing  the  judgment,   or   othcr- 

82  Harlan  v.  Harlan,  14  Ivca.  107. 

83  Miller  v.  Willis,  1.')  Nob.  13. 

8*  Mclntyn'  v.  Sanford,  0  Daly,  21. 
86  Loomis  V.  liuiige,  GU  Fed.  Hep.  85G. 


§  44  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  200 

wise.***  As  a  general  rule,  however,  an  officer  is  pro- 
tected by  process  fair  upon  its  face  and  not  absolutely 
void.  Respecting  irregularity,  none  but  the  ^(?fendaiiL 
can  complain.  Hence,  it  is  the  duty  of  the  officer  to 
execute  the  process  placed  in  his  hands  for  that  pur- 
pose without  regard  to  any  amendable  defects  therein, 
and  he  cannot  escape  liability  for  his  failure  to  do  so 
by  relying  upon  these  defects  by  way  of  exoneration.**'" 

§  44.  Designating  the  Return  Day.— The  p;  riod  with- 
in which  the  execution  is  to  be  returned  differs  in  the 
different  states,  being  regulated  by  local  statutes.  At 
common  law,  the  time  for  the  return  was  designated 
in  the  writ,  and  this  practice  still  obtains  in  most,  but 
not  in  all,  of  the  states.  It  has  sometimes  been  held 
that  an  error  in  the  return  day,  or,  in  other  words,  the 
designation  in  the  writ  of  a  return  day  at  a  time  differ- 
ent from  that  designated  by  law,  was  fatal .'^^  But  this 
view  is  entirely  without  the  support  of  reason,  and  is 
now  opposed  by  a  decisive  majority  of  the  reported  ad- 
judications upon  this  subject.®^     In  fact,  there  is  no 

86  Fisher  v.  Franklin,  38  Kan.  251. 

87  Hall  V.  Doyle.  3.5  Ark.  445;  Singer  S.  Co.  v.  Barnett,  78  Ga.  377; 
Cody  V.  Quinn,  6  Ired.  191,  44  Am.  Dec.  75;  post,  sec.  103. 

88  Fitield  V.  Richardson,  34  Vt.  410;  Ex  parte  Hatch,  2  Aik.  28; 
Bond  V.  Wilder.  10  Vt.  393;  Tichosnt  v.  Cilley,  3  Vt.  415;  Jameson 
V.  Paddock,  14  Vt.  491;  West  v.  Hughes,  1  Har.  &  J.  574,  2  Am.  Dec. 
539,  in  which  case  no  return  day  was  named;  Harris  v.  West,  2r> 
Miss.  156.  This  last  case  is  irreconcilable  with  the  later  case  of 
Brown  v.  Thomas,  26  Miss.  335.  This  rule  was  appli«Ml  in  New 
York  to  executions  issued  by  justices  of  the  peace  and  made  re- 
turnable in  less  than  ninety  days,  on  the  ground  that  "it  is  well 
settled  that  inferior  and  limited  jurisdictions  must  be  confined 
strictly  to  pursue  the  autliority  given  them."  Toof  v.  liently,  5 
Wend.  276;  F'arr  v.  Smith,  9  Wend.  338,  24  Am.  Dec.  162. 

88  Brown  v.  Hurt,  31  Ala.  146;  Chambers  v.  Stone.  0  Ala.  260; 
W^offord  V.  Robinson,  7  Ala.  489;  Stephens  v.  Dennison,  1  Or.  19; 
Wilson  V.  Huston.  4  Bibb,  332;    Cramer  v.  Van  Alstyne.  9    Johns- 


201  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  44 

mere  matter  of  form  from  which  a  departure  could  be 
of  less  detriment  to  the  parties.  The  provision  for  a 
return  day  is  bem-ficial  mainly,  if  not  solely,  to  the 
plaintiff,  because  it  fixes  a  time  when  he  may  expect 
to  obtain  the  fruits  of  his  judgment,  by  compelling  the 
sheriff  to  have  the  writ  satisfied,  if  satisfaction  can  be 
had.  The  defendant  has  no  interest  in  the  return  day, 
for  the  writ,  as  soon  as  sued  out,  may  and  ought  to  be 
levied,  whether  it  be  returnable  in  ten  days  or  in  six 
months.  And  whether  the  time  for  the  return  day  be 
material  to  defeiulant  or  immaterial,  he  ought  not  to 
be  precluded  from  waiving  his  rights;  and  if  he  does 
waive  them,  either  in  express  terms  or  by  silent  acqui- 
escence, the  waiver  ought  to  be  irrevocable.  An  exe- 
cution issued  January  7,  1842,  was  by  mistake  made 

386;  How  v.  Kane,  2  Chand.  233,  54   Am.    Dec.  152;    Campbell    v. 
Gumming,  2  Burr.  1187;  Mitchell  v.  Corbin.  91  Ala.  509;  Henderson 
V.  Zachary,  80  Ga.  08;  Goode's  Admr.  v.  Miller,  78  Ky.  235;  Stone 
V.  Martin,  2  Denio,  185,  where  the  return  day  fell  on  Sunday;  Will- 
iams V.  Rogers,  5  Johns.  IGG,  overruling  Drake  v.  Miller,  Col.  Cas.  85; 
Milburn  v.  State,  11  Mo.  188,  47   Am.  Dec.  148;  Brown  v.  Thomas, 
20  Miss.  335,  where  no  time  was  fixed  for  the  return;  Williams  v. 
Hogeboom,  8  Paige,  469.     In  this  last  case    Chancellor  Walworth 
said:  "As  every  court  of  record  of  general  jurisdiction  must  judge 
of  the  regularity  of  its  own  proceedings,  if  the  mistake  in  the  re- 
turn day  of  this  execution  did  not  render  the  process  actually  void, 
the  remedy  of  the  defendant,  if  he  has  any,  is  by  application  to  set 
aside  the  execution  for  the  irregularity.    And  it  now  appears  to  be 
fully  settled  in  this  state,  as  well  as  in  England,  that  a  mistake  In 
the  return  day  of  an  execution  issuing  out  of  a  court  of  record  of 
general  jurisdiction  is  not  void;  but  it  is  only  voidable  upon  an  ap- 
plication to  set    the  same  aside  for   irregularity.     See  Atkinson  v. 
Newton,  2  Bos.  &  P.  336;  Koddell  v.  Pakeman,  1  Gale's  Exc.  Rop. 
104.    I  am  satisfied,  therefore,  that  a  neglect  to  make  an  execution 
returnable  at  the  end  of  sixty  days  from  the  receipt  thereof  by  the 
sheriff  renders  it  irregular  merely;  and  that  the  execution  is  not 
void,  so  as  to  make  the  attorney  issuing  it.  and  the  party  in  whose 
favor  it  is  issued,  trespassers;  without  the  necesity  of  an  application 
to  the  court,  to  set  aside  the  execution    for  the    irregularity;    and 
■where  the  irregularity  may  be  cured  by  such  court  by  amendment." 


S  ii  TUE  FORM  OF  THE  ORIGINAL  EXECUTION.  202 

rotiirnable  on  the  first  Monday  in  July,  1841.  A  mo- 
tion against  the  sheriff  and  his  sureties  was  made  for 
not  returning"  the  execution  according  to  law,  which 
motion  he  resisted,  on  the  ground  that  the  writ  was 
returnable  on  an  impossible  day.  The  court  said: 
"There  is  no  question  the  clerk  committed  a  mistake 
both  in  the  year  and  the  Monday  of  the  month,  in 
stating  the  time  for  the  return,  but  this  did  not  affect 
the  sheriff,  or  make  it  less  his  duty  to  make  the  money 
and  return  the  process  according  to  law."  ^^  An  exe- 
cution returnable  in  a  less  time  than  allowed  by  law  is 
valid,  and  may  be  executed  after  the  time  named  in 
1  he  writ.^^  In  Vermont,  however,  a  different  conclu- 
sion was  established  at  an  early  date,  which  the  courts 
have  refused  to  reconsider.^^-  A  writ  returnable  at  a 
more  distant  date  than  sanctioned  by  statute  may  be 
enforced  within  the  time  in  which  it  might  properly 
have  been  made  returnable.'*"  The  rule  is  otherwise 
in  Mississippi.^'*  The  omission  of  any  part  or  of  the 
whole  of  the  clause  designating  a  time  or  place  for  the 
return  of  the  writ  is  an  amendable  defect,  which, 
though  not  amended,  does  not  vitiate  the  writ  on  a 
collateral  attack."^ 

If  the  time  for  the  return  is  fixed  by  law,  it  is  suffi- 
ciently specified  in  a  writ  by  a  direction  therein  that 
the  officer  make  due  return  thereof  or  make  return  ac- 

80  Samples  v.  Walker.  9  Ala.  726. 

01  E.stes  V.  I.ong,  71  Mo.  G05. 

02  Bond  V.  Wilder,  IG  Vt.  ;J9.3;  Perry  v.  Whipple,  38  Vt.  278. 

03  Youusblood  V.  Cunningbam,  38  Ark.  571;  Mitchell  v.  Corbin,  91 
Ala.  .590;  Wilson  v.  Ilustou,  4  Bibb,  332. 

01  Lehr  v.  Itogers,  3  S.  «&  M.  4G8. 

05  Benedict  &  B.  M.  Co.  v.  Thayer,  20  Ilun,  5-17;  Walker  v.  Isaacs, 
3G  Hun,  233;  Douglass  v.  Haberstro,  88  N.  Y.  018;  Mitchell  v.  Cor- 
bin, 91  Ala.  599;  Waldrop  v.  Friedman,  90  Ala.  157,  24  Am.  Si.  Hep. 
775. 


203  THK  FORM  OF  THE  ORIGINAL  EXKCUTION.  §  43 

cording  to  hiw/"'  If,  in  a  writ  containing  tliis  genLMal 
command,  tlie  cierlv  of  the*  court  interpolates  an  inac- 
curate and  erroneous  return  day,  sucii  interpolation 
will,  on  a  motion  to  quash  the  writ,  be  treated  as  mere 
surplusage."'  To  make  a  writ  returnable  on  Sunday 
is,  of  course,  irregular,  but  the  writ  is  subject  to 
amendment  and  therefore  is  not  void."^ 

§  45.    Clause  of  Attestation. — The  execution  closed 
with  a  clause  of  attestation,  as  *' Witness,  Edward, 

Lord  Ellenborough,  at  Westminster,  the day  of 

,  in  the year  of  our  reign."     The  use  of  the 

name  of  the  judge  is  a  mere  formality,  and  hence  it 
is  not  necessary  that  the  judge  named  be  the  one 
who  presided  at  the  trial,  nor  is  it  material  that  he 
failed  to  preside  because  he  was  disqualified  to  act 
in  the  cause.''*'"^  In  the  English  court  of  king's  bench, 
a  writ  of  fieri  facias  need  only  be  sealed;  "but  in 
the  common  pleas,  all  executions  are  required  to  be 
signed  by  the  prothonotary,  and  must  be  so  signed 
before  they  are  sealed.''  ^^^  Defects  in  the  clause  of 
attestation,  unless  we  may  except  the  seal  and  signa- 
ture, are  regarded  as  defects  in  matters  of  form,  and 
therefore  as  not  affecting  the  validity  of  the  writ.^"^ 
In  Georgia,  a  writ  was  erroneously  dated,  so  that  the 
j)erson  in  whose  name  it  was  tested  was  not  the  judge 

ssWofford  V.  Robinson,  7  Ala.  4S9;  MeDaniel  v.  Johnston,  110 
Ala.  G2G;  Stephens  v.  Dennison,  1  Or.  19. 

07  MeDaniel  v.  Johnston,  110  Ala.  52U. 

»8  Boyd  V.  Vandeikemp,  1  Barb.  Ch.  273. 

»»  Drawdy  v   Littlefield.  75  Ga.  215. 

100  Tidd's  Prac.  909;  Bingham  on  Judpjments  and  Executions, 
190.  In  New  York,  an  execution  need  not  contain  any  teste  nor 
direction  to  return.  Carpenter  v.  Siiumous,  1  Robt.  3G0;  2S  How. 
Vr.  12;  Douglass  v.  Haberstro,  SS  N.  Y.  CIS. 

3  01  A  -writ  tested  on  a  wrong  day  is  a  nullity  in  New  Brunswick. 
rower  V.  Johnson,  2  Kerr.  43. 


§  45  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  20* 

at  the  date  of  the  teste.  This  writ  was  held  not  to  be 
void,  and  the  sheriff  was  not  jpermitted  to  avail  him- 
self of  the  irregularity  as  an  excuse  for  not  serving  the 
writ.*^^  At  the  common  law,  a  judgment  was  deemed 
to  be  entered  on  the  first  day  of  the  term.  The  exe- 
cution might  bear  teste  any  time  after  the  supposed 
entry  of  the  judgment.  "Every  writ  of  execution,  in 
the  case  of  a  common  person,  must  bear  teste  in  term 
time;  for,  being  the  process  of  the  court  in  which  judg- 
ment is  given,  they  have  no  authority  for  awarding  it 
at  any  other  time.  When  judgment  is  entered  up  in 
vacation,  it  relates  in  point  of  form  to  the  first  day  of 
the  preceding  term,  and  execution  may  be  sued  out  on 
it  by  a  writ  tested  as  of  the  preceding  term;  for  the 
plaintiff  having  run  through  the  whole  course  of  a 
judicial  proceeding,  and  his  cause  being  ripe  for  exe- 
cution, it  would  be  unreasonable  to  oblige  him  to  wait 
till  the  ensuing  term,  by  which  he  might  be  disap- 
pointed of  the  effect  of  his  judgment."  ^^^  In  the  United 
States,  the  theory  of  the  common  law,  that  the  execu- 
tion is  issued  by  the  court  and  is  a  judicial  act,  does 
not,  as  a  general  rule,  prevail.  With  us  it  is  a  minis- 
terial act,  to  be  performed  by  the  clerk  of  the  court; 
and  which  may  be  i)erformed  out  of  term  time  as  well 
as  within  term  time.  We  are  therefore  under  no 
necessity  of  giving  our  writs  a  fictitious  date.  We 
have  also  very  generally  abolished  the  common-law  fic- 
tion that  a  judgment  is  entered  at  the  commencement 
of  the  term.  In  most  of  the  states,  the  proper  date  for 
the  writ  is  that  at  which  it  was  in  fact  taken  out.^"^ 

102  Jordan  v.  PorteiQeld,  19  Ca.  139,  63  Am.  Dec.  301. 

103  Bingham  on  Judf.'monts    and    Executions,  sec.  187;  Farley  v. 
Lea,  4  Dev.  &  B.  1G9,  32  Am.  Dec.  G80. 

104  Mollison  V.  Eaton,  16  Minn.  426;  Brown  v.  Tarker,  15  111.  307; 
Morgan  v.  Taylor,  38  N.  J.  L.  317. 


20O  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  45 

This  is  not,  however,  universally  true.     Thus,  in  North 
Carolina,  writs  of  execution  are  required  to  be  tested 
as  of  the  term  of  court  next  before  the  day  on  which 
I  hey  are  issued,  "'^  and  in  Tennessee    all    executions 
bear  teste  from    the   first   Monday  of   the  term  from 
which  they  pui^jort  to  have  been  issued,  and  are  made 
returnable   at   the   first   Monday    of   the    succeeding 
lerm.^""     If  the  date  is  stated  according  to  the  year  of 
the    commonwealth,    the    year    of    Christ    may     be 
omitted.^**'^     Neither   the   misdating  of  a  writ,***^  nor 
the  entire  omission  of  a  date,^**^  invalidates  it.     So,  the 
entire  clause  of   attestation   may  be  omitted  without 
rendering  the  writ  void.****     With  respect  to  the  sig- 
nature of   the  clerk  on  the  w-rit,  the    authorities  are 
meager  and  inharmonious.     In  North  Carolina,  it  was 
;issumed  that  a  justice's  execution  not  signed  by  him 
is  void.***     In  Georgia,  under  a  statute  authorizing  a 
tax  collector  to  issue  a  fieri  facias  upon  a  demand  for 
taxes,  it  was  held  that  a  writ  signed  by  a  tax  collector, 
but  omitting  liis  official  title,  was  not  a  legal  process 
nor  a  good  execution    under  the  law,  on  the  ground 
"that  every  public  document  which  is  required  by  law 
to  be  executed  by  a  public  officer,  must  be  verified  by 
the  official  signature  of  the  person  Avho  made  it";  and 
that  the  spirit  of  this  law  "is  answered  only  when  the 
official    character  of   the   person    making  it  is  estab- 

105  Williams  v.  Weaver,  94  N.  C.  134. 

106  Uuion  Bank  v.  McCIuns,  9  Humph,  91. 
lOT  Craig  v.  Jolinson,  Hard.  529. 

los  Norris  v.  Sullivan,  47  Conn.  474.  where  a  writ  issued  .July  29th 
was  dated  June  10th.  Jones  v.  Cook,  1  Cow.  309;  Williams  v. 
Weaver,  94  N.  C.  134. 

109  Usry  V.  Saulsbury,  G2  Ga.  179. 

no  People  V.  Van  Hoesen,  G2  How.  Pr.  7G;  Douglass  v.  Haberstro, 
8S  N.  Y.  Gil. 

Ill  Hugglns  V.  Ketchum,  4  Dev.  &  B.  414. 


§  45  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  20G 

lislied,  and  the  document  appears  upon  its  face  to  be 
an  official  act,  attested  by  tlie  signature  of  the  offi- 
cer." ^^'  Whether,  however,  this  rule  is  in  that  state 
extended  to  writs  issued  upon  judgments,  or  is  re- 
stricted to  those  in  tax  proceedings,  we  are  unable  to 
state.  It  is  certain,  however,  that  when  the  writ  is 
not  signed,  it  is  not  so  far  void  that  it  cannot  become 
valid  as  against  the  defendant  by  his  acquiescence 
therein,  as  where,  being  present  at  the  sale,  he  makes 
no  objection  thereto,  nor  to  the  writ,  and  surrenders 
possession  of  the  property  to  the  purchaser."^  In 
Illinois,  a  writ  issued,  which  the  clerk  of  the  cour-t 
neglected  to  sign.  Under  it  the  sheriff  sold  real  prop- 
erty and  issued  a  certificate,  and,  at  the  expiration  of 
the  time  for  redemption,  a  deed  to  the  purchaser. 
Some  four  years  afterward  the  plaintiff's  attorney 
moved  the  court  to  set  aside  the  sale,  the  motion  was 
allowed,  and  a  new  execution  was  awarded,  on  which 
the  property  was  again  sold  and  purchased  by  the 
plaintiff.  In  considering  the  effect  of  the  first  sale, 
the  court  referred  to  the  statute  of  the  state  providing 
that  "the  clerk  of  the  circuit  court  may  issue  process 
in  all  cases  arising  therein,  which  process  shall  bear 
teste  in  the  name  of,  and  be  signed  by,  such  clerks 
respectively,  and  be  dated  on  the  days  on  which  they 
issue,  and  be  made  returnable  according  to  law,"  and, 
construing  such  statute,  said  "that  the  writ  must  be 
signed  by  the  clerk  is  made  indispensable  by  this  en- 
actment. The  signature  is  as  essential  under  this  law 
as  is  the  seal  or  other  specific  requirement,  and,  in  its 
absence,  the  writ  must  be  held  to  confer  no  power  on 
the  officer  to  whom  it  was  directed.     If  without  power^ 

112  Short  V.  State,  79  Ga.  550. 

113  Kawles  v.  Jackson,  104  Ga.  593,  69  Am.  St.  Rep.  185. 


207  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  4o 

the  sale  and  other  proceedings  under  it  were  of  no 
effect  and  were  as  though  they  had  never  been 
had."  ■^**  The  conclusion  thus  announced  has  been 
followed  in  more  recent  decisions/ ^^  The  weight  of 
authority  is  therefore  sli'ihtly  in  favor  of  the  proposi- 
tion that  the  omission  from  an  execution  of  the  signa- 
ture of  the  officer  authorized  to  issue  it  renders  it  void. 
If  the  writ  is  issued  by  an  offuer  having  no  Seal,  there 
is  nothing,  in  the  absence  of  his  signature,  to  indicate 
that  the  paper  is  authentic  or  was  intended  to  be  given 
out  by  him  as  an  execution.  Where,  however,  the  writ 
issues  from  a  court  having  a  seal,  and  such  seal  is 
impressed  thereon,  the  question  is  more  difficult. 
At  an  early  day  in  Pennsylvania,  a  writ  of  venditioni 
exponas  was  issued,  but  not  signed,  by  a  prothonotary. 
In  response  to  an  objection  to  it  upon  this  ground,  the 
court  answered:  "This  objection  is  of  no  validity.  The 
writ  issued  under  the  seal  of  the  court,  and  the  not 
signing  by  the  prothonotary  was  a  clerical  omission 
which  the  court  could  have  ordered  to  be  supplied  at 
any  time."  ^^"  In  Arkansas,  a  fieri  facias  was  ob- 
jected to  as  void  because  not  signed  by  the  clerk, 
though  perfect  in  every  other  respect.  The  court  de- 
clared that  an  original  writ  might  be  held  void  for  an 
omission  of  this  character,  because  it  was  connected 
with  the  inception  of  the  suit,  and  the  jurisdiction  of 
the  court  rested  thereon,  but  tliat.  as  a  writ  of  execu- 
tion was  issued  after  the  court  acquired  full  jurisdic- 
tion of  the  case  and  the  parties,  the  principles  govern- 
ing   original    writs  were  not  applicable  thereto,  and, 

"4  Hernandez  v.  Drake.  SI  111.  34. 

"5  Wooters  v.  .Joseph,  137  111.  113,  31  Am.  St.  Rop.  .3.".";  Donrbom 
L.  Co.  V.  Chieajro  etc.  Co.,  55  111.  App.  38.  To  the  same  effect  see 
BrisRon  v.  Lefebvre.  Rap.  Jud.  Quebec.  12  C.  S.  1. 

"«  McCormack  v.  Meason,  1  S.  &  K.  92. 


§  45  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  208 

finally,  that  "although  a  writ  without  a  signature  of 
the  clerk,  as  required  by  the  constitution,  is  erroneous, 
yet  it  is  not  necessarily  void,  and  the  court  whence  it 
issued,  upon  application  for  that  purpose,  might  either 
quash  or  amend  it,  as  the  circumstances  of  the  case 
might  require.^^^  In  another  case  in  the  same  state, 
the  sheriff  resisted  an  action  against  him  for  failure  to 
return  a  writ  within  the  time  limited  by  law,  on  the 
ground  that  it  was  not  signed  by  the  clerk  of  the  court 
in  which  the  judgment  was  rendered,  but  bore  the  sig- 
nature of  the  plaintiff  in  execution.  The  court  held, 
in  overruling  this  defense,  that  "the  sounder  doctrine 
is,  that  his  omission  to  sign  a  writ  issued  by  him,  or 
the  affixing  by  inadvertence  the  name  of  another  per- 
son instead  of  his  own,  as  in  this  case,  is  a  mere  cleri- 
cal misprision — matter  of  form  and  not  substance — 
and  that  the  defect  will  be  treated  as  amended  when- 
ever it  is  collaterally  assailed."  ^^^  In  other  states, 
writs  not  signed  by  the  officer  issuing  them  have  been 
sustained  where  his  name  has  been  written  by  him  in 
the  clause  of  attestation,  or  in  making  an  endorsement 
thereon.  A  statute  of  Indiana  enacted  that  all  writs 
should  bear  teste  in  the  name  of  the  clerk  of  the  proper 
courts.  A  writ  was  issued  tested  in  the  handwriting 
of  the  clerk  of  the  court,  "witness,  R.  N.  W.,  clerk  of 
Madison  circuit  court,  etc."  It  was  not  otherwise 
signed.  The  court  held  that  this  conformed  with  the 
statute  and  was  a  sufficient  signing  and  testing;  that, 
as  the  "teste  contained  the  name  and  official  character 
of  the  clerk  in  his  own  handwriting,  it  appears  to  be 
sufficiently  signed  to  show  that  it  issued  from  the 
proper  mint  of  justice,  and  that  is  all  that  can  be  re- 

1"  Whiting  V.  Beebe,  12  Ark.  421,  537. 
"8  Jett  V.  Shinu,  47  Ark.  373. 


209  THE  FORM  OF  THE  OPJGINAL  EXECUTION.  §  45 

quired."  ^*"  In  Kentucky,  an  execution  was  issued  by 
a  justice  of  tlie  peace  in  the  usual  form,  except  that 
it  was  not  signed  by  him,  but  there  was  an  indorse- 
ment thereon  showing  that  the  execution  was  issued 
upon  a  replevin  bond  and  that  no  security  could  be 
taken,  to  which  endorsement  the  name  of  the  justice 
was  by  him  subscribed.  The  trial  court,  having  held 
the  writ  invalid,  its  action  Avas  reversed  upon  appeal 
on  the  ground  that  endorsements  made  by  the  officer 
issuing  an  execution  are  a  part  thereof  and  that,  as  the 
name  of  the  justice  immediately  followed  the  endorse- 
ment, it  must,  for  every  essential  purpose,  be  under- 
stood to  be  a  signing  by  him  and  a  communicating  to 
the  execution  the  same  force  and  effect  that  the  most 
formal  signing  could  do.^-" 

In  Ohio,  an  execution  signed  by  and  in  the  name  of 
a  deputy  clerk,  without  signing  the  name  of  his  prin- 
cipal, is  unobjectionable.*^^  Perhaps  it  is  not  strictly 
accurate  to  assert  that  the  omission  by  a  deputy  of 
the  name  of  his  principal  is  entirely  unobjectionable. 
It  is,  however,  at  most,  a  mere  irregularity  not  invali- 
dating proceedings  taken  under  the  writ.*'^ 

From  the  general  rule,  that  an  error  in  the  dating  of 
an  execution,  if  not  entirely  immaterial,  is,  at  least, 
but  an  amendable  defect,  it  follows  thut  a  writ  dated 
on  Sunday  is  not  for  that  reason  invalid.'-"  If  the 
writ  is  dated  in  a  year  long  anterior  to  the  entry  of  the 
judgment  as  recited  therein,  it  is  manifest  that  this  is 
clearly  a  misprision  of  the  clerk  in  issuing  the  writ,and, 

"oWibriglit  v.  Wise,  4  Blaekf.  137. 

120  Nichols  V.  Taylor,  0  Mon.  o25. 

121  Chapin    v.    Allison,   l.j   Ohio,   nOG. 

122  Griswckl  v.  Connolly.  1  Wootl,  193. 

123  Williams  v.  Hogeboom,  22  Wend.  408. 

Vol.  I.- 14 


§  46  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  210 

such  being  the  case,  that  the  process  "is  not  void,  and 
at  most  but  voidable;  that  the  officer  to  whom  the  pro- 
cess is  delivered  should  execute  it,  and,  failing  to  do 
so,  must  be  held  responsible."  *''* 

In  Alabama,  the  question  has  been  presented 
whether,  in  a  collateral  proceeding,  the  date  appear- 
ing upon  the  face  of  a  writ  of  execution  can  be  shown 
to  be  erroneous  for  the  purpose  of  supporting  a  levy 
thereunder,  which,  if  the  date  named  in  the  writ  be 
accepted  as  correct,  was  invalid  because  made  more 
than  sixty  days  after  its  issuing.  It  was  held  that 
whether  it  would  have  been  competent  or  not  on  a 
motion  to  amend  the  teste  of  the  writ,  if  seasonably 
made  and  in  the  proper  forum,  to  have  received  evi- 
dence upon  the  subject  and  to  have  made  an  amend- 
ment based  thereon,  yet  that  in  this  collateral  proceed- 
ing it  was  not  permissible,  by  parol  evidence  or  an 
entry  in  the  docket,  "of  no  greater  dignity  than  a  mere 
memorandum  casually  made  by  a  justice  of  the  peace," 
to  show  that  the  writ  bearing  date  January  29,  1878, 
was  in  fact  issued  on  ^March  29th  of  the  same  year.^^ 

§  46.  The  Seal.— The  effect  of  the  failure  to  affix 
the  seal  of  the  court  to  an  execution  is  a  subject  upon 
which  the  authorities  are  too  evenly  divided  to  war- 
rant us  in  expressing  a  very  decided  opinion.  The 
question  has  been  much  more  frequently  determined 
than  discussed  by  the  courts.  The  conclusions  on 
either  side  have  been  announced  with  a  curtness  and 
dogmatism  that  disdained  argument  and  explanation, 
and  cared  neither  to  deal  with  logic  nor  delve  for 
precedents.     On  the  one  side,  the  theory  seems  to  be 

124  Whitfehall  Bank  v.  Tettes,  13  Vt.  395,  37  Am.  Dec.  600;  TerkanB 
V.  Webb,  G7  111.  App.  474. 

125  Friedman  v.  Waldrop,  97  Ala.  434. 


211  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  46 

that  before  the  seal  is  affixed   there  can  be  no  writ; 
that  without  the  seal  there  can  be  no  lej^al  command 
to  execute  the  judgment  of  the  court;  that  an  officer, 
acting;  in  the  absence  of  the  seal,  acts  in  the  absence 
of  the  writ,  and  that,  so  acting,  whatever  he  does  is 
unjustifiable  and  void.^-"     This  question  was  recently 
re-examined  in  the    supreme    court  of    Kansas.     The 
constitution  of  that  state  provides  that  all  courts  of 
record  shall  have  a  seal,  to  be  used  in  the  authentica- 
tion of  their  process,  and,  in  construing  this  language, 
the  court,  in  Dexter  v.  Cochan,  17  Kan.  447,  declared 
that  a  summons  issued  without  a  seal  is  void.     The 
majority  of  the  court  was  of  the  opinion  that  the  rule 
thus  announced  respecting  a  summons  was  equally  ap- 
plicable to  a  writ  of  execution,  and  that  the  constitu- 
tional provision  is  mandatory,  and  a  writ  issued  with- 
out a  seal  was  not  amendable  and  was  hence  void.^^'' 
On  the  other  side,  it  is  assumed  that  the  omission  of  the 
seal  is  the  omission  of  a  matter  of  form  rather  than 
of  substance;  that  it  can  be  corrected  by  amendment, 
on  application  to  the  court,  and  that,  being  an  amend- 
able error,  it  cannot  utterly  avoid  the  writ.     This  view 
seems  to  us  entitled    to  favorable  consideration,  and 
to  be  constantly  gaining  ground.     Of  all  the  different 
parts  of  the  writ,  this  is  most  purely  a  mere  matter  of 
form,  and  its  omission    the  least   likely  to   prejudice 
either  of  the  parties,  or  to  mislead  the  officer  in  exe- 
cuting the  writ.     Without  it  there  is  certainly  enough 

i:«  Insurance  Co.  v.  Halloik.  IJ  Wall.  5oG;  Boal  v.  King,  6  Ohio,  11; 
Swett  V.  Patrick,  2  Fairf.  179;  Ilutchins  v.  Edson,  1  N.  H.  139; 
Shackhford  v.  McRea,  3  Hawks.  220;  Seawell  v.  Bank  of  Cape 
Fear,  3  Dev.  279,  22  Am.  Doc.  722;  Taylor  v.  Taylor,  83  N.  C.  116; 
Rosoman  v.  Miller.  84  111.  297:  Weaver  v.  Peasley,  163  111.  251,  54 
Am.  St.  Rep.  409;  Maun  v.  Red.  49  III.  App.  406;  Bouin  v.  Durand, 
2  \ja.  Ann.  770. 

1-'  Cordon  v.  Bodwell,  59  Kan.  51,  68  Am.  St.  Rep.  341. 


§  47  Tin:  FORM  OF  THE  ORIGINAL  EXECUTION.  212 

to  indicate  the  judgment  to  be  enforced,  and  that  the 
command  for  its  enforcement  proceeds  from  competent 
authority,  and  a  writ  indicating  this,  and  in  fact  issued 
by  the  clerk  of  the  court,  ought  to  be  treated  as  valid, 
at  least  until  objected  to  by  some  proceeding  to  set 
it  aside.^-**  AYhen,  after  the  lapse  of  a  long  period, 
a  writ  is  offered  in  evidence,  a  very  slight  and  indis- 
tinct impression  will  be  presumed  to  have  been  made 
by  a  scal.^'^ 

§  47.  A  Material  Alteration  in  a  writ,  made  by  plain- 
tiff after  its  issue,  without  leave  of  the  court,  will, 
no  doubt,  make  the  writ  void  as  against  the  plaintiff 
and  all  others  having  notice  of  th(^  unauthorized  altera- 
tion.*^® The  alteration  of  an  original  into  an  alias 
writ  is  said  to  make  it  void;  ^^^  but  this  rule  will  not 
be  allowed  to  so  operate  as  to  destroy  the  protection 
due  to  a  sheriff  or  constable  to  whom  the  writ  was 
delivered  for  execution.'^- 

In  some  instances,  changes  or  alterations  in  writs 
of  execution  made  by  the  oflflcers  who  issued  them,  or 
under  their  direct  authority,  have  been  sustained,  or, 
more  accurately  speaking,  it  has  been  held  that  this 
irregularity  was  not  sufficient  to  invalidate  the  writ. 

128  Kose  V.  Ingram,  98  Ind.  276;  Hunter  v.  Bnrnsville  T.  Co.,  56 
Ind.  213;  Bridowell  v.  Mooney,  25  Ark.  524;  Taylor  v.  Courtnay,  15 
N\'l).  190;  Devor  v.  Akin,  40  Ga.  429;  Corwitli  v.  Bank  of  Illiuods, 
18  Wis.  500,  SO  Am.  Dec.  793;  Sabin  v.  Austin,  19  Wis.  421;  People 
V.  Dunning,  1  Wend.  16;  Doniinick  v.  Backer,  3  Barb.  17;  Arnold  v. 
Nye,  23  Mich.  280;  Sawyer  v.  Baker,  3  Grcenl.  20;  Pureell  v.  McFar- 
land,  1  Ired.  34,  35  Am.  Dec.  7:M;  Hall  v.  Lackmond,  50  Ark.  11.3, 
7  Am.  St.  Rep.  84;  Mitchell  v.  Duncan,  7  Fla.  13;  Warmouth  v.  Dry- 
di'n,  125  Ind.  355;  "Wolf  v.  Cook,  40  Fed.  Rep.  432. 

i29Heiglnvay  v.  Pendleton,  15  Ohio,  755. 

130  Trigg  V.  Koss,  35  Mo.  105;  People  v.  Lamborn,  1  Scam.  123; 
White  V.  Jone.s,  38  III.  159. 

131  Johnston  v.   Winslow,  2  N.  B.  53. 

132  Faris  V.  State,  3  Ohio  St.  159. 


'J13  THE  FOUM  OF  THE  OKKJINAL  EXECUTION.  §  47 

TLuf.",  in  the  case  of  rierce  v.  Hubbard,  10  Johns.  404, 
it  appeared  that  a  writ  of  execution  iip(jii  which  one 
of  the  parties  relied  had  been  altered  in  its  datL-  from 
the  25th  of  December,  ISIO,  to  the  1st  of  March,  ISll, 
and  that  another  had  been  altered  from  the  11th  of 
December,  ISIO,  to   the  2d  of  March,  1811.     The  jus- 
tice who  issued  the  first  execution   testified   that    he 
mii;ht    have    authorized    the    constable  to  make  this 
change  in  the  date,  as  he  frequently  gave  constables 
])erniission    to    alter   the   dates  of  executions  at   the 
request  of  the  plaintiff,  as  he  considered  these  altera- 
tions equivalent  to  renewals.    The  justice  who  issued 
the  second  execution  testified  that,  though  it  was  made 
out  in  December,  1810,  it  was  not  delivered  to  the  con- 
stable until  :March,  1811.     The  court  said  that  it  did 
not  appear   that  anj'thing  had    been  done   under  the 
executions  Until  after  the  alterations  had  been  made 
in  their  dates,  ^'and,  if  the  alterations  were  made  by 
direction  of  the  justice,  the  process  would  not   there 
be  invalid.     Any  general    authority,  however,  by  jus- 
tices to  constables  to  fill  up  or  alter  process  would  be 
void  and  wholly  improper.     It  is  a  practice  which  in 
no  case  would  be  prudent  or  discreet  on  the  part  of 
the  magistrates.     Whether  the  alterations  in  the  pres- 
ent case  were  made  by  the  authority  of  the  justices  or 
not  were  questions  of  fact  for  the  jury  to  decide;  and 
Ave  do  not  see  sutficient  grounds  for  setting  aside  their 
verdict."     So,  in  a  case  in  Arkansas,  it  was  shown  that 
after  an  execution  had  been  made  out  directed  to  a  con- 
stable of  a  designated  township  and  placed  in  his  hands, 
be  refused  to  execute  it,  and  thereupon  a  justice  of  the 
peace  told  the  plaintiff  to  tell  the  constable  to  strike 
out  tlie  name  of  the  township  and  insert  in  lieu  thereof 
the  name  of  another  township,  and  this  change  being 


§  47  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  214 

thus  made,  the  execution  was  placed  in  the  hands  of  a 
constable  of  the  last-named  township,  who  levied  upon 
and  sold  certain  property  thereunder.  When  these 
acts  were  sought  to  be  justified,  the  trial  court  ex- 
cluded the  execution  from  evidence  on  the  ground  that 
this  change  was  not  made  in  the  presence  of  the  jus- 
tice, and  that  he  could  not  delegate  to  another  the 
power  to  make  it.  The  appellate  court,  however, 
maintained  that,  as  the  change  in  the  execution  was 
made  by  the  direction  of  the  justice  and  before  it  went 
into  the  hands  of  the  officer  who  made  the  levy  there- 
under, though  the  change  was  made  irregularly,  the 
process  was  not  void  on  that  account.***  An  execu- 
tion was  issued  in  December,  1868,  and  made  returnable 
on  the  first  Monday  in  March,  18G9.  The  officer  failed 
to  act  thereunder  within  the  time  designated,  and  the 
clerk  who  issued  the  execution,  a  few  days  after  its 
return  day,  erased  the  word  "March"  and  substituted 
"April,"  and  in  like  manner  afterward  erased  "April" 
and  substituted  "June."  On  the  last  return  day  a  sale 
was  made,  and  the  question  was  thereafter  presented 
whether  such  sale  could  be  sustained.  The  court  said 
that  if  the  writ,  when  originally  issued,  could  have 
been  made  returnable  on  the  first  Monday  in  June, 
18G0,  it  appeared  on  its  face  to  be  valid  and  operative 
at  the  time  of  the  sale,  and  that  in  a  collateral  pro- 
ceeding, the  purchaser  might  rely  thereon,  that  the 
erasures  and  interlineations  were  not  of  themselves 
sufficient  to  vitiate  the  executions.**'*  If  an  execution 
shows  that  certain  words  have  been  erased  and  others 
inserted  in  their  place,  and  the  evidence  fails  to  dis- 
close the  time  at  which  such  erasures  and  insertions 

"3  Atkinson  v.  Gatcher,  23  Ark.  101. 

134  Brevard's  Exrs.  v.  .lonos,  50  Ala.  221. 


1215  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  47 

were  mude,  the  presumptiou  against  fraud  is  ap- 
plicable', and  the  court  will  proceed  on  the  assumption 
that  the  apparent  alteration  was  innocently  made, 
prior  to  the  issuing  of  the  writ.^*^"* 

§  47  a.  Forms  of  Executions  on  Decrees. — Writs 
issued  in  chancery  for  the  purpose  of  enforcing  its  de- 
crees were  in  the  name  of  the  reigning  monarch,  if  in 
England,  and  of  the  President  of  the  United  States, 
if  in  this  country,  and  were  directed  to  the  person  or 
persons  who  were  therein  commanded  to  do  some  act, 
either  in  the  performance  of  the  decree  on  their  part, 
or  looking  toward  the  coercion  of  others  to  its  per- 
formance. If  the  writ  wa«  an  injunction  or  a  writ  of 
execution,  it  was  directed  to  the  defendants.  If  it  was 
an  attachment,  it  was  directed  to  the  sheriff.  If  it 
was  a  writ  of  sequestration,  it  was  directed  to  the  per- 
sons who  had  been  chosen  as  sequestrators.  In  either 
case  it  enjoined  the  person  or  persons  to  whom  it  was 
directed  to  perform  and  fulfill  the  matters  and  things 
which  had  been  decreed  to  be  done,  or  else  to  do  cer- 
tain acts  which  might  produce  the  satisfaction  of  the 
decree,  either  through  seizing,  fining,  or  imprisoning 
the  defendant,  or  taking  possession  of  his  property 
and  appropriating  the  proceeds  or  income  thereof.  At 
the  present  time,  decrees  for  the  payment  of  specific 
sums  of  money  are  enforced  by  writs  of  fieri  facias 
having  the  same  effect,  and  we  presume  substantially 
in  the  same  form,  as  writs  of  like  character  issued  upon 
judgments  at  law.  If  the  decree  commanded  the  sale 
of  specific  property,  as  where  it  foreclosed  a  mortgage 
or  other  lien,  or  authorized  the  sale  of  property  over 
which  the  court  had  assumed  jurisdiction,  and  of  which 
it  had  taken  possession  by  its  receiver  or  other  officer, 

"8  First  Nat.  Bank  v.  Fraukliu.  20  Knn.  2G4;  Preston  v.  Wright. 
•00  la.  351. 


§  47  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  216 

we  are  unable  to  discover  that  any  other  authority 
was,  by  the  English  chancery  practice,  required  to 
warrant  the  action  of  the  officer  or  other  person  au- 
thorized to  make  the  sale  than  such  decree  itself/^** 
In  California,  hoAvevcr,  it  has  been  held  that  the 
entry  of  a  decree  of  foreclosure  will  not  alone  au- 
thorize the  sheriff  to  make  sale  of  the  property  as 
therein  directed;  that  his  action  must  be  based  on 
something  equivalent  to  an  execution;  and  that  this 
something  may  consist  either  of  a  formal  order  of  sale 
issued  by  the  clerk,  or  of  a  copy  of  the  decree  certi- 
lied  by  him.^'^'  llespecting  foreclosures  in  the  na- 
tional courts,  equity  rule  92  provides  that  "in  suits 
in  equity  for  the  foreclosure  of  mortgages  in  the 
circuit  courts  of  the  United  States,  or  in  any  court  of 
the  territories  having  jurisdiction  o|  the  same,  a  decree 
may  be  rendered  for  any  balance  that  may  be  found 
due  the  complainant  over  and  above  the  proceeds  of 
the  sale  or  sales,  and  execution  may  issue  for  the  col- 
lection of  the  same,  as  is  provicled  in  the  eighth  rule 
of  this  court,  regulating  the  equity  practice,  where  the 
decree  is  solely  for  the  payment  of  money."  A  prac- 
tice very  simihir  to  that  prescribed  by  this  rule  pre- 
vails in  Alabama,  when  a  decree  is  entered  to  enforce 
a  vendor  s  lien,  and  execution  should  not  be  directed 
to  issue  for  the  whole  amount  of  the  debt.  The  court 
should  ascertain  the  balance  remaining  due  after  a 
sale  of  the  land,  and  not  until  then  should  execution 
be  ordered  for  such  balance.^^* 

136  Ante,  §  37  n.  phnwins  that  Avhile  orders  of  sale  usually  issue, 
they  are  not  indispfMisablo,  and  hence  that  errors  therein  do  not 
affect  the  rights  of  purchasers. 

137  iieyman  v.  Bahcock,  30  Cal.  3GT.  See,  also,  FnrMiors'  &  M. 
Bank  v.  Luther,  14  Wis.  OG;  Rhonemus  v.  Corwin,  9  Ohio  St.  366. 

138  Baker  v.  Young,  90  Ala.  42G. 


217  THE  FORM  OF  THE  ORIGINAL  EXECL'TluN.  §  47 

The  following  is  the  form  of  liori  facias  given  iu  Bingham  on 
Judgments  anil   Executions: 

George  the  Third,  e(c. 

To  the  Sheriff  of  Greeting:  We  command  you.  that  of  the 

goods  and  chattels  of  C  D,  in  your  bailiwick,  you  cause  to  be  made 
£  Which  A  B,  lately  in  our  court  before  us  at  Westminster, 

recovered  against  him  for  his  damages  which  he  had  sustained,  as 
well  on  occasion  of  the  not  performing  certain  promises  and  un- 
dertakings, then  lately  made  by  the  said  C  D  to  the  said  A  B,  as 
for  his  costs  and  charges  by  him  about  his  suit  in  that  behalf 
expended;  whereof  the  said  C  D  is  convicted,  as  api)ears  to  us  of 
record;  and  have  that  money  before  us,  at  Westminster,  on 
next  after  to  render  to  said  A  B  for  his  damages  aforesaid; 

and  have  there  then  this  writ.     Witness  Edward,   Eord  Ellenbor- 
ough,  at  Westminster,  the  day  of  In  the  year  of  our 

reign. 

If  the  judgment  were  in  favor  of  two  or  more  plaintiffs,  and 
against  two  or  more  defendants,  and  one  of  the  plaintiffs  and  one 
of  the  defi-ndants  had  died  since  its  rendition,  then  the  forego- 
ing form,  after  the  direction  to  the  sheriff,  might  read  as-  follows: 
"We  command  you,  that  of  the  goods  and  chattels  of  G  H  and  J 
K,  in  your  bailiwick,  you  cause  to  be  made  £  ,  which  A  B,  C  D, 
and  E  F  in  the  lifetime  of  E  F,  now  deceased,  and  whom  the  said 
A  B  and  C  D  have  survived,  lately  in  our  court  before  us  at  West- 
minster, recovered  against  them,  the  said  G  II  and  J  K,  and  one 
L  M,  in  his  lifetime,  now  deceased,  and  whom  the  said  G  H  and 
J  K  have  survived,  for  their  damages  which  they  had  sustained, 
as  well  in  occasion  of  the  not  performing  certain  promises  and 
undertakings,  then  lately  made  by  the  said  G  H,  J  K,  and  L  M,  to 
the  said  A  B,  C  D,  and  E  F,  as  for  their  costs  and  charges  by  them 
about  this  suit  in  that  behalf  expended,  whereby  said  G  H,  J  K, 
and  L  M  are  convicted"  (proceeding  from  this  point  in  the  same 
manner  as  in  the  first  form). 

If  a  sole  plaintiff  had  died,  a  fieri  facias  in  favor  of  his  executor 
or  administrator  read  as  shown  in  the  first  form  down  to  and  in- 
cluding the  clause,  "appears  to  us  of  record,"  after  which  was  in- 
serted the  following:  "And  whereupon  it  is  considered  in  our  said 
court  before  us  that  E  F,  executor  of  the  last  will  and  testament 
of  said  A  B,  deceased  (or  administrator  of  all  and  singular  the 
goods,  chattels,  and  credits,  which  were  of  said  A  B,  deceased, 
at  the  time  of  his  death,  who  died  intestate),  have  execution 
against  the  said  C  D  for  the  damages  aforesaid,  according  to  the 
force,  form,  and  effect  of  said  recovery  by  the  default  of  said  0 
D,  as  also  appears  to  us  of  record." 

If  a  sole  defendant  had  died,  the  form  after  the  words  "C  D" 
was  varied  so  as  to  read,  "deceased,  at  the  time  of  his  death,  in 


ji  47  THE  FOU-M  OF  IRE  ORIGINAL  EXECUTION.  218 

the  bauds  of  E  F,  executor,"  etc.  (or  administrator,  etc.),  to  be 
administered,  in  jour  bailiwicli,  you  cause  to  l>e  made  £  wliich 
A  1>,  lately  in  our  court,  etc.,  etc.  And  whereupon  it  is  considered 
in  our  said  court,  before  us  at  Westminster  aforesaid,  that  the 
said  A  B  have  his  execution  against  the  said  E  F,  as  executor  (or 
administrator),  as  aforesaid,  of  the  damages  aforesaid,  of  the  goods 
and  chattels  which  were  of  the  said  C  D  at  the  time  of  his  death, 
in  the  hands  of  said  E  F,  as  executor  (or  administrator),  as  afore- 
said, to  be  administered  according  to  the  form  and  effect  of  said 
recovery;  and  have  that  money,  etc.   (as  in  the  first  form). 

lu  California,  where  an  execution  may  be  directed  against  the 
lands  as  weU  as  the  chattels  of  the  defendant,  it  may  be  iu  the 
following  form  (see  Code  Civ.  Troc.  of  Cal.,  sec.  (JS2): 

The  People  of  the  State  of  California. 

To  the  Sheriff  of  the  County  of  Greeting:  Whereas,  on  the 

day  of  18—,  A  B,  plaintiff,  recovered  judgment  in  the 

superior  court  of  the  county  of  iu  said  state,  agaiust  C  D,  de- 

fendant, for  $  and  $  costs  of  suit,  and  the  judgment-roll 

is    on    file  iu  said  county;  and  whereas  the  sum    of   $  is  now 

actually  due  on  such  judgment  — 

Now,  therefore,  you  are  required  to  satisfy  said  judgment,  with 
interest,  out  of  the  personal  property  of  the  said  C  D,  or  if  suffi- 
cient personal  property  of  said  C  D  cannot  be  found,  then  out  of 
the  real  property  to  him  belonging,  on  the  day  when  said  judgment 
was  docketed,  or  at  any  time  thereafter,  and  make  return  of  this 
writ   within  days  after  your  receipt  thereof. 

Witness  my  hand    and    the    seal  of  said  court  this  day  of 

A.  D.  18—. 

[Seal  of  Court.]  E  F,  Clerk  of  said  Court, 

By  C  D,  Deputy. 

The  next  two  forms  are  those  in  use  in  the  circuit  and  district 
courts  of  the  United  States  for  the  district  of  California. 

United  States  of  America. 

The  President  of  the  United  States  of  America,  to  the  Marshal 
of  the  District  of  California,  Greeting:  You  are  hereby  commanded 
that  of  the  goods  and  chattels  of  in  your  district,  you  cause 

to  be  made  the  sum   of  dollars  to  satisfy  a  lately   ren- 

dered in  the  circuit  court  of  the  United    States,  for  the  district  of 
California,  against  for  the  damages  which  had  sustained 

as  well  by  reason  of  as  for  the  costs  and  charges  in  and  about 

that  suit  expended,  whereof  the  said  convicted  as  appears  of 

record.     And  if  sufficient  goods  and  chattels  of  the  said  can- 

not l)e  found  within  your  district,  that  then  you  cause  the  amount 
of  tlie  said  to  be  made  of  the  real  estate,  lands,  and  tenements 

whereof    the    said  seised    on  the  said  day  of  A.  D. 


219  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  47 

188 — ,  or  at  any  lime  afterward,  iu  whose  hands  soever  the  same 
may  be,  and  have  you  that  money,  together  with  this  writ,  with 
your  doings  thereon,  before  the  judges  of  said  circuit  court,  at  the 
courlliouse  thereof,  in  the  city  and  county  of  !Sau  Francisco,  district 
of  Giilifornia,  on  the  day  of  A.  D.   1S8— ,  to  satisfy  the 

so  rendered  as  aforesaid. 

Witness,  the  Honorable  Murrison  R.  Waite,  chief  justice  of  the 
supreme  court  of  the  United  States  of  America,   this  d:iy  of 

iu  the  year  of  our  Lord  one  tliousand  ciglit  hundred  and 
and  of  our  Independence,  the 

Attest  my  hand  and  the  seal  of  said  circuit  court,  the  day  and 
year  last  above  written.  Clerli, 

By  Deputy  Clerk. 

District  of  California,  ss. 

The  President  of  the  United  States  of  America,  to  the  Marshal 
of  the  District  of  California,  Greeting:   Whereas,  a  was  tiled 

in  the  district  court  of  the  United  States  for  the  district  of  Cali- 
fornia, on  the  day  of  ,  in  the  year  of  our  Lord    one  thou- 
sand eight  hundred  and            by  ,  and  such  proceedings  were 
thereupon  had,  that  by  the  Judgment  and  decree  of  said  court  in 
the  said  cause  entered  on  the           day  of  18—,  tlie  said 
reiiuired  to    pay  to    the    said            the    sum    of  besides 
<.'osis  in  this  suit  to  be  taxed,  and  execution  was  ordered  therefor; 
and  whereas,  the  said  costs  have  been  duly  taxed  at  the  sum  of 
as  by  the  records  and  files  of  said  court  fully  api)ear  — 

Now,  therefore,  we  command  you,  that  of  the  goods  and  chat- 
tels of  the  said  in  your  district,  and  in  default  of  goods  and 
chattels  of  then  of  the  lands  and  tenements  in  your  district 
of  which  seised,  on  the  day  you  shall  receive  this  writ,  or  at 
any  time  afterward,  you  cause  to  be  made  the  sum  of  and 
further,  that  you  have  those  moneys  in  said  court,  at  the  court- 
house in  the  city  of  San  Francisco,  on  or  before  the  day  of 
A,  D.  18—,  to  render  to  the  said  in  satisfaction  of  said 
judgment  and  decree;  and  that  you  duly  return  to  the  said  court 
what  you  shall  do  in  the  premises,  together  with  this  writ. 

Witness,  the  honorable  Ogden  Hoffman,  judge  of  the  said  court, 
Jit  the  city  of  San  Francisco,  In  the  district  of  California,  this 
<lay  of  in  the  year  of  our  Lord    one  thousand  eight  hundred 

and  eighty-  and  of  our  Independence,  the  one  hundred 

Clerk, 
Writ  of  Execution   in  Chancery. 

<3eorge  the  Third,  by  the  Grace  of  God,  of  Gvvat  Britain.  France 
and  Ireland  King.   Defender  of  the  Faith,  and  so  forth,   to  A 
B  and  C  D,     Greeting: 
Whereafl,  by  certain  final  judgment  or  decree,  lately  made  before 

US  iu  our  court  of  chancery,  in  a  certain  cause  there  depending. 


■  §  47  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  220 

wherein  E  F  is  complainant,  and  you,  the  said  A  B  and  C  D,  are 
defendants:  It  is  ordered  and  decreed  that  ^here  insert  the  things 
ordered  to  be  done  in  the  decree),  as  by  said  decree  duly  enrolled, 
and  remaining  as  of  record,  in  our  said  court  of  chancery,  doth  and 
may  appear, 

Therefore,  we  strictly  enjoin  and  command  you,  the  said  A  B 
and  C  D,  that  you  do  severally  pay,  perform,  fulfill,  and  execute 
all  and  every  the  moneys,  matters,  and  things  specified  in  the  paid 
finally  judgment  or  decree,  in  all  things  so  far  as  the  same  any  way 
relates  to  or  concci'ns  you  respectively,  according  to  the  true  mean- 
ing and  import  of  the  said  decree,  and  of  these  presents,  and  hereof 
fail  not,  at  your  peril.  Witness  ourselves  at  Westminster,  the 
da>  of  and  in  the  year  of  our  reign. 

Writ  of  Attachment  in  Chancery. 

George  the  Third,   etc. ' 

To  the  Sheriff  of  Greeting:  We  command  you  to  attach  A  B 

so  as  to  have  him  before  us  in  our  court  of  chancery,  wheresoever 
the  said  court  shall  then  be,  there  to  answer  to  us,  as  well  touch- 
ing a  contempt  which  he,  as  is  alleged,  hath  committed  against  us, 
as  also  such  other  matters  as  shall  then  be  laid  to. his  cliarge;  and 
further,  to  abide  such  order  as  our  said  court  shall  make  in  his 
behalf;  and  hereof  fail  not,  and  bring  this  writ  with  you. 

Witness  ourselves  at  Westminster,  tlie  day    of  in    the 

year  of  our  reign. 

Distringas  Against  a  Corporation. 

George  the  Third,  etc. 

To  the  Sheriff  of  the  County  of  ,     Greeting:  We  command 

you  that  you  make  a  distress  upon  the  lands  and  tenements,  goods 
and  chattels,  of  (here  name  the  corporation),  within  your  bailiwick, 
so  as  neither  the  said  nor  any  other  person  or    persons    for 

them,  may  lay  his  or  their  hands  thereon  until  our  court  of  chan- 
cery sliall  make  other  order  the  contrary;  and  in  the  meantime  you 
are  to  answer  to  us  for  the  said  goods  and  chattels,  rents  and  prof- 
its of  the  said  lands,  so  that  the  said  may  be  compelled  to 
appear  before  us  in  our  said  coui*t  of  chancery,  wheresoever  it  then 
shall  be,  there  to  answer  to  us  as  well  touching  a  contempt  which 
they,  it  is  alleged,  have  committed  against  us,  as  also  such  other 
matters  as  shall  be  then  and  there  laid  to  their  charge;  and  fur- 
ther to  perform  and  abide  such  order  as  our  said  court  shall  make 
in  this  behalf;  and  herein  fail  not,  and  bring  this  writ  with  you. 

Witness,  etc.,  etc. 


2_'l  THE  FORM  OF  THE  ORIGINAL  EXECUTION.  §  47 

Writ  of  Sequestration. 

George  the  Third,  etc. 

To  A  B,  C  D,  E  F,  etc.:  Wliorcas,  etc.  (here  the  occasion  of  the 
issuing  of  the  writ  was  recited,  showing  the  suit  and  the  act  wlilch 
defendant  liad  failed  to  perform,  etc.) 

Know  yo,  therefore,  that  we,  in  consideration  of  your  prudence 
and  fidelity,  have  given,  and  by  these  presents  do  give  to  you,  any 
three  or  two  of  you,  full  powur  and  authority  to  enter  upon  all 
ihe  messuages,  lands,  tenements,  and  real  estate  whatsoever,  6t  the 
said  I  J,  and  to  take,  collect,  receive,  and  se«iuester  into  your  hands, 
not  only  the  rents  and  profit.s  of  the  said  messuages,  lands,  tene- 
ments, and  real  estate,  but  also  all  his  goods,  chattels,  and  personal 
estate  whatsoever;  and  therefore,  we  command  you,  any  three  or 
two  of  you,  that  you  do,  at  certain  proper  and  convenient  days  and 
hours,  go  to  and  enter  upon  all  the  messuages,  lands,  tenements, 
and  real  estate  of  the  said  I  J;  and  that  you  do  collect,  take,  and 
get  into  your  hands,  not  only  all  the  rents  and  profits  of  all  his  real 
estate,  but  also  all  his  goods,  chattels,  and  personal  estate,  and  keep 
ilie  same  under  sequestration,  in  your  hands,  until  the  said  I  J 
shall  fully  answer'the  complainant's  bill  and  clear  his  contempts, 
and  our  said  court  make  other  orders  to  the  contrary. 

Witness  ourselves  at  Westminster,  the  day  of       ,  in  the 

year  of  our  reign. 


§  4S  ISSUING  ALIAS  AND  PLURIES  VVRIXa  222: 


CHAPTEK  IV. 

ISSUIl^G  ATJAS  AND  PLUEIES  WEITS. 

§  48.    Classification  of  cases  in  which  may  Issue. 
§  49.     The  former  writ  ought  to  be  returned. 
§  50.     When  there  is  an  outstanding  levy. 
§  51.    May  issue  after  year  and  a  day  without  scire  facias. 
§  52.     When  may  issue  without  return  of  former  writ. 
§  54.     Issued,  when  judgmeut  was  satisfied  fraudulently  or  by  mis- 
take. 
§  54.     After  snle  under  void  writ,  or  where  defendant  had  no  title. 
§  55.     Form  of,  and  consequence  of  errors  in. 
§  56.     Notice  to  obtain. 
§  56a.  Renewals  instead  of  alias  writs. 

§  48.  Classification  of  Cases  in  Which  an  Alias  Writ 
may  Issue. — The  plaintiff  is  not  limited  to  his  original 
or  first  writ  of  execution,  but  may  call  to  his  aid  such 
further  writs  as  may  be  necessary  to  enable  ^  him  to 
obtain  a  full  satisfaction  of  his  demand.^  It  is  not 
necessary  that  the  plaintiff  should  be  able  to  point  to 
any  specific  statutory  provision  giving  him  a  right  to 
an  additional  writ.  It  is  sufficient  that  the  judgment 
in  his  favor  remains  wholly  or  partly  unsatisfied  and 
that  the  time  within  which  execution  may  issue 
thereon  has  not  terminated.  The  right  to  such  fur- 
ther writs  as  may  be  necessary  to  the  enforcement  of 
his  judgment  may  be  regarded  as  a  common-law  right. 
At  all  events,  it  must  be  conceded  to  exist,  unless  ex- 
pressly taken  away  by  statute.     It  is  not  taken  away 

1  Steele  v.  Thompson.  62  Ala.  323;  Pennington's  Exr.  v.  Yell,  11 
Ark.  212,  ."2  Am.  Dec.  262;  Ilayward  v.  Pimerital,  107  Cal.  386; 
Woods  V.  Bryezinski,  .57  Conn.  471;  Clark  v.  Reinigor,  m  Iowa.  507; 
Chesebro  v.  Bariiie,  163  Mass.  79;  Yetzer  v.  Young,  3  S.  D.  263. 


223  ISSUING  ALIAS  AND  PLURIES  WRITS.  §  49 

by  a  statute  giving  some  furtlier  remedy,  unless  such 
remedy  appears  to  be  exclusive  rather  than  concur- 
rent.^ The  second  writ  is  usually  called  an  alias,  and 
writs  issued  subsequently  to  the  alias  are  plune« 
writs.^  An  alias  or  f)luries  may  usually  be  issued  as 
of  course,  without  leave  oi"  the  court,  but  there  are  cir- 
cumstances in  which  it  is  first  necessary  to  obtain  such 
leave.  An  alias  or  pluries  writ  is  proper — 1.  When 
the  preceding  writ  has  been  returned  unsatisfied  in 
whole  or  in  part;  2.  When  the  preceding  writ  has  not 
been  returned,  and  a  sufficient  reason  exists  for  the 
issuing  of  another  writ  without  requiring  a  return  of 
the  former;  3.  Where  a  former  writ  has  been  returned 
satisfied,  when  no  satisfaction  has  in  fact  been  made. 
In  the  first  case  the  writ  may  issue  as  of  course;  but 
in  the  last  two  cases  there  is  usually  a  necessity  for 
obtaining  an  order  of  court. 

§  49.  Necessary  that  Former  Writ  shall  be  Returned. 
It  is  obvious  that  to  allow  plaintiff  successive  writs  of 
execution  to  the  same  county,  without  requiring  him 
to  give  any  account  of  his  proceedings  under  former 
writs,  would  be  likely  to  lead  to  great  confusion  and 
abuse  in  the  execution  of  process.  As  between  differ- 
ent kinds  of  writs,  it  is  clear  that  plaintiff  may  at  the 
common  law  sue  out  one  kind  without  returning  an- 
other. Ilence  a  plaintiff  having  taken  a  fieri  facias 
may  issue  a  ca.  sa.,  even  where  an  attempted  levy  has 
been  made  under  the  former,  but  abandoned  because 
the  property  had  been  previously  seized  under  other 
process,  or  was  from  any  other  cause  no  longer  liable  to 

2  Walter  v.  Greenwood.  29  Minn.  87;  Yetzer  v.  Young.  3  S.  D.  263. 

3  Hamilton  v.  Lyman,  9  Mass.  14;  Swift  v.  Flanagan,  12  IIow.  Pr. 
438. 


§  49  ISSUING  ALIAS  AND  PLURIES  W  KITS.  224 

seizure.^  But  if  the  levy  be  consummated,  there  must 
be  a  return  of  the  fieri  facias  before  the  ca.  sa.  can  is- 
sue, although  the  levy  was  abandoned  or  proved  unpro- 
ductive.*"' In  some  of  the  United  States  the  plaintiff  is 
by  statute  allowed  at  his  own  cost  to  take  out  a  sec- 
ond execution  without  returning  the  first."  But  where 
no  statute  has  interposed  to  chauy;e  the  rule  of  the 
common  law,  it  is  clear,  in  this  country  as  well  as  in 
England,  that  no  execution  can  regularly  issue  if 
any  attempt  has  been  made  to  execute  a  former  writ 
to  which  no  return  has  been  made.'^  The  rule  proba- 
bly goes  further  when  the  second  writ  is  of  the  same 
nature  as  the  first,  and  prohibits  the  issuing  without 
leave  of  the  court  of  any  alias  or  pluries  execution 
while  the  former  writ  is  unreturned,  no  matter  whether 
a  levy  has  been  made  or  not;  ^  and  to  support  this  pro- 

4Dicas  V.  Warne,  3  Moore  &  S.  814;  10  Bing.  341;  Steele  v.  Mur- 
ray, 1  Blackf.  179;  Edmond  v.  Ross,  9  Price,  5;  Chesebro  v,  Barme, 
163  Mass.  79. 

5  Hudson  V.  Dangerfield,  2  La.  GO,  liO  Am.  Dec.  297;  Miller  v.  Par- 
uell,  C.  Taunt.  370;  2  Marsh.  78;  Dennis  v.  Wells,  Cro.  Eliz.  344; 
Lawes  v.  Codrington,  1  Dowl.  P.  C.  30;  Turner  v.  W^alker,  2  GUI  & 
J.  377,  22  Am.  Dec.  329;  Wilson  v.  Kingston,  2  Chit.  203;  Scott  v. 
Hill,  2  Murpb.  143;  Arnold  v.  Fuller,  1  Ohio,  458;  Purdon  v.  Purdon, 

2  Miles,  173. 

6  Webb  V.  Bumpass,  9  Port.  201,  33  Am.  Doc.  310;  Fryer  v.  Dennis, 

3  Ala.  2.j4;  Ilopldn.s  v.  Laud,  4  Ala.  427;  Windrum  v.  I'arker,  2 
I^eigh,  3G1. 

7  Allen  V.  Jolinsou,  4  J.  J.  Marsh.  235;  Gist  v.  Wilson,  2  Watts, 
r.O;  Cumpston  v.  Field,  3  W^end.  382;  Marshall  v.  Moore,  30  111.  321 
Babcock  v.  McCamant  53  111.  215;  Dorland  v.  Dorland,  5  Cow.  417 
Ledyard  v.  Buckle,  5  Hill,  571;  Corning  v.  Burdick,  4  McLean,  133 
McMurrich  v.  Tlioinpson,  1  U.  C.  P.  R.  258;  Cairns  v.  Smith,  8  .Johns. 
337:  Chapman  v.  Pvowlby.  8  Mees.  &  W.  248;  1  Dowl.,  N.  S.,  83;  Cop- 
liondale  v.  Debo'iiaire.  Barnes,  213;  but  see  Green  v.  Elgie,  3  Barn. 
Sz.  AdoL  437;  Fninklin  v.  Ilodgkinson,  3  Dowl.  &  L.  5.54;  10  .Tur.  249; 
15  L.  T.  Q.  B.  1.32;  Chapman  v.  Dyett,  11  Wend.  31,  25  Am.  Dec.  598. 

^  Waters  x.  Oaton,  1  Har.  &  McH.  407;  Corning  v.  Burdick,  4 
McLean,  183;  Oviat  v.  Vyner,  Salk.  318;  Cutler  v.  Colver,  3  Cow.  30. 
But  in  McXair  v.  Ragland,  2  Dev.  Eq.  42,  22  Am.   Dee.  728.  it  is 


225  ISSUING  ALIAS  AND  PLUUIKS    W  KITS.  §  -JJ 

hibition  it  has  been  maintained  that,  after  the  issuing; 
of  execution,  a  presumption  arises  and  continues  till 
rebutted  by  the  ollicer's  return  that  the  juil;^inent  has 
been  satisfied  by  levy  on  sufficient   j^oods."    An   alias 
may  properly  issue  after  the  return  of    the    original 
writ,  thou<ih  such  return  was  made  before  the  rc.'turn 
day.^"  To  hold  otherwise  would  be  to  rt  <iuire  an  officer 
having  an  execution  in  his  hands  to  always  keep  it  in 
his  possession  until    the   return    day  named   therein. 
This,  we  believe,  is  nowhere  required,  unless  it  be  in 
Pennsylvania,  where  it  has  been  held  that  to  have  an 
original  and  an  alias,  both  returnable    at    the    same 
term,  is  irregular.*^    In  the  other  states  the  fact  that  a 
writ  has  been  returned  before  the  return   day  thereof 
does  not  impose  upon  the  plaintiff  the  duty  of  waiting 
until  that  day  before  he  can  take  out  a  second  or  alias 
writ.*^    The  right  to  an  execution  continues,  notwith- 
standing the  loss  or  destruction  of  the  record.*^    Hence 
such  loss  or  destruction  constitutes  no  valid  objection 
to  the  issuing  of  an  alias  writ.**    The  issuing  of  a  sec- 
ond writ   before   the   return  of  the  first  is  a  mere  ir- 
regularity.    The  writ  is  not  void,**'     It  has  been  said 

said  that  a  plaintiff  may  sue  out  as  many  writs  of  oxecuiion  as  he 
pleases.  Alias  writs  of  execution  may  issue  in  Minnesota,  notwith- 
standinj;  the  statute  of  that  stale  providius  for  the  renewal  of  exe- 
cutions. Walter  v.  Greenwood,  2t)  Minn.  ST:  People  v.  Brayton,  37 
m.  App.  ;il9;  Mcnitt  v.  (irover,  57  loWa,  593;  01  Iowa,  99. 
»  Bisliop  V.  Spruance.  4  Ilarr.  (Del.)  114. 

10  Pennington  v.  Yell,  11  Arlc.  212,  ."2  Am.  Dec.  262. 

11  Shaffer  v.  Watkins,  7  "W.  &  S.  219. 

12  Iyovef;rove  v.  Brown,  GO  Me.  592;  Chesebro  v.  Barme.  16.1  Mass. 
79:  Pliillips  v.  Evans.  04  Mo.  17:  Rammel  v.  Watson,  31  N.  J.  L.  281, 
Islay  V.  Stewart,  4  D.  &  B.  L.  100. 

13  Faust  V.   Echols,  4  Cold.   397. 

14  Childress  v.  Marks.  2  Baxt.  12. 

isAtwood  V.  Bearss.  45  .Mich.  409:  Mace  v.  Dutton.  2  Ind.  309.  52 
Am.  Dec.  510;  State  v.  Page,  1  Spears,  408,  40  Am.  Dec.  OUS.  ' 
Vol.  I.— 15 


§  49  ISSUING  ALIAS  AND  PLURIES  WRITS.  22G 

that  if  it  were  necessary  to  do  so,  in  order  to  sustain 
proceedings  taken  under  an  alias  writ,  the  court  would 
direct  that  a  return  be  entered  ui^ou  the  first  writ, 
nunc  pro  tunc,  as  of  a  day  antedating  the  issuing  of 
the  alias.^^  If  the  plaintiff  purchases  thereunder,  the 
sale  may  be  vacated,  unless  the  defendant  has  in  some 
mode  waived  the  irregularity.^''  Such  waiver  is  im- 
])lied  when,  having  notice  of  the  existence  of  both 
writs,  he  permits  a  sale  of  realty  to  be  made  under  the 
second  writ,  allows  the  time  for  redemption  to  expire, 
and  surrenders  possession  before  attempting  to  urge 
the  objection  that  there  were  two  writs  in  existence 
at  the  same  time.^**  In  Georgia  it  seems  that  an  alias 
cannot  ordinarily  issue,  and  that  even  when  the  origi- 
nal writ  has  been  lost  or  destroyed  the  proper  mode  of 
proceeding  is  to  establish  a  copy  of  sucli  original.  If, 
however,  an  alias  is  in  such  case  impropeily  awarded, 
the  proceedings  thereunder  are  treated  as  valid. ^'"^ 
The  code  of  this  state  now  provides  that,  if  an  execu- 
tion issued  from  a  superior  court  is  lost  or  destroyed, 
the  judge  may,  upon  proper  application  made  and  facts 
proved  by  affidavit,  grant  an  order  for  the  issuing  of 
an  alias  in  place  of  the  lost  original,  and  that,  as  to 
executions  issued  from  justices'  courts,  the  justice, 
when  an  original  is  lost  or  destroyed,  may  issue  an 
alias,  and,  when  the  clerk  of  any  court  has  made  a  mis- 
take in  issuing  an  execution,  either  he  or  his  successor 
in  office  may  correct  such  mistake  by  amending  the 

10  Miller  v.  Ilanlcy,  94  Mich.  27j3;  Rainmel  v.  Wafson,  31  N.  J.  L. 
281. 

"  Merritt  v.  Grover,  57  Iowa,  493. 

i«  Merritt  v.  Grover,  61  Iowa.  99.  Section  .''.9.'>."  of  Ihe  code  of  that 
state  declares  that  "but  one  execution  shall  be  iu  existence  ut  the 
same  time." 

19  Rushin  v.  Shields,  11  Ga.  G3G,  5G  Am.  Dec.  43U;  Kcl!o-g  v.  Buck- 
ler, 17  Ga.  IS". 


227  ISSUING  ALIAS  AND  PUJUIKS  WRITS.  §  50 

execution  or  by  issuing  an  alias,  to  be  signed  and  dated 
by  Lim  at  the  time  it  is  issued.-"  Where  the  statute 
has  provided  for  certain  proceedings  to  renew  execu- 
tions, a  defendant  who,  being  duly  notilied  of  such  pro- 
ceeding, fails  to  make  the  objection  that  there  is  a  prior 
w'rit  whieli  has  never  been  returned  is  precluded  from 
urging  such  objection  thereafter.'^ 

§  50.  When  There  is  an  Outstanding  Levy.— When  a 
wnt  has  been  issued  and  procee<rnigs  have  been 
taken  thereunder  for  its  satisfaction,  there  is  a 
manifest  propriety  in  requiring  tliem  to  be  pursued 
to  such  a  point  that  it  can  be  known  whetlier,  and 
to  what  extent,  they  Avill  be  productive  before  per- 
mitting the  defendant  to  be  harassed  by  other  writs, 
and  this,  whether  the  original  execution  has  been  re- 
turned or  not.  By  the  statutes  usually  prevailing  in 
the  United  States  a  writ  may  be  levied  upon  real  prop- 
erty as  well  as  upon  personal  estate.  If  it  is  levied 
upon  personal  i)roperty  of  sufficient  value  to  ])ay  the 
judgment,  a  presumed  satisfaction  thereof  arises,  and 
the  plaintiff  has  no  right  to  take  out  any  other  writ  un- 
til this  presunii)tion  of  satisfaction  is  in  some  manner 
rebutted.  With  respect  to  real  estate,  however,  the 
rule  prevailing  in  a  majority  of  the  states  is,  that  no 
presumption  of  satisfaction  arises  from  the  levy  of  a 
writ  thereon,  irrespective  of  the  value  of  the  property 
subject  thereto.  In  the  case  of  personal  property  it 
cannot  be  known,  until  a  sale  thereof  lias  taken  i)lace, 
whether  it  will  satisfy  the  writ  or  not.  I'^or  the  pur- 
pose of  issuing  a  further  writ,  the  presumption  ap- 
pears to  prevail  that  the  judgment  must  be  regarded 

encode  Or.,  etl.  1S95,  sees.  5115,  4752,  4755;  Lowry  v.  Kicbards. 
C2  Ga.  370. 

:i  Bull  V.  Kowo,  13  S.  C.  355. 


§  50  ISSUING  ALIAS  AND  PLUlllES  WRITS.  228 

as  satisfied,  or,  at  least,  as  suspended,  where  personal 
property'  has  been  levied  upon  and  remains  subject 
thereto.  If  the  writ  has  been  returned,  a  venditioni 
exponas  may  issue  requiring  the  officer,  notwithstand- 
ing the  return,  to  sell  the  property  which  has  been 
levied  upon  under  the  original  writ  and  to  apply  its 
proceeds  to  the  satisfaction  of  the  plaintiff's  judg- 
ment.^^  It  is,  however,  irregular  to  issue  any  further 
writ  of  execution.^^  Where,  however,  the  levy  is  upon 
real  estate,  the  weight  of  authority  is  to  the  effect  that 
such  levy  does  not  constitute  any  satisfaction  of  the 
judgment,  however  valuable  may  be  the  property  sub- 
ject thereto.-'^  It  is  hence  claimed  that  such  levy  con- 
stitutes no  obstacle  to  the  subsequent  issuing  of  an 
alias  writ.^^  We  are  inclined  to  think,  however,  that 
whether  a  levy  upon  real  property  can  be  regarded  as 
producing  a  suspension  of  the  presumed  satisfaction  of 
the  judgment  or  not,  still  it  ought  to  be  disposed  of  be- 
fore further  writs  are  issued.^**  After  a  levy  is  made 
the  plaintiff  has  no  right  to  wantonly  abandon  it;  and 
if  he  does  so,  and  procures  the  issuing  of  an  alias  writ, 
or  if,  under  any  circumstances,  an  alias  issues  while  a 
levy  under  a  prior  writ   remains   undisposed  of,  such 

22  Babcock  v.  McCamant,  53  111.  214;  Freeman  v.  Brown,  7  T.  B. 
Mon.  262. 

23  Marshall  v.  Moore,  36  III.  321;  Friyer  y.  INIcNaughton,  110  Mich. 
22;  Hastings  F.  N.  B.  v.  Rogers,  13  Minn.  407,  97  Am.  Dec.  239; 
Missimer  v.  Ebersole.  87  I'a.  St.  109;  Cornelius  v.  Burford,  28  Tex. 
202,  91  Am.  Dec.  309. 

24  Davidson  v.  Caston,  IG  Minn.  2.''>0;  Poale  v.  Bolton,  24  Miss.  630; 
Sliepard  v.  Rowe,  34  AVend.  2(M);  Cundilf  v.  Toague,  46  Tex.  475. 

25  Wood  V.  Conrad,  2  S.  D.  40.5. 

26  Anderson  v.  Fowler,  8  Ark.  ;5SS:  Macy  v.  Hollingsworth,  7 
Blackf.  349;  McWilliams  v.  Myers,  10  Iowa,  325;  Downard  v.  Cren- 
shaw, 49  Iowa,  296;  Grant  v.  Boyd,  Sneed.  348;  Hopkins  v.  Cham- 
bers, 7  Mon.  257;  Arnold  v.  Fuller,  1  Ohio.  458. 


229  ISSUING  ALIAS  AND  PLUKIES  WRITS.  §  60 

alias  may  be  quashod."''  If,  however,  a  levy  Las  been 
abandoned  willi  the  consent  or  acquiescence  of  the  de- 
fendant, or,  thoii<;li  not  so  abandoned,  it  has,  without 
the  fault  of  the  plaintiff,  proved  unproductive,  and  the 
judgment  therefore  remains  unsatisfied  in  whole  or  in 
part,  the  ri^^ht  to  an  alias  writ  exists.^'*  So,  if  it  ap- 
pears that  the  writ  was  irregularly  issued,  or  that  pro- 
<*eedings  have  been  irregularly  taken  under  it,  the 
plaintiff  has  the  right  to  abandon  them  because  of  this 
irregularity,  especially  if  complaint  is  made  thereof  by 
the  defendant,  and  hence  the  plaintiff  niay  cause  the 
original  writ  to  be  returned  and  an  alias  writ  to  be 
thereupon  issued,  or  the  irregular  levy  to  be  abandoned 
and  a  new  and  regular  levy  to  be  thereupon  made.''** 
After  property  has  been  levied  upon,  it  may  be  lost 
through  the  negligence  or  misconduct  of  the  officer,  as 
by  his  permitting  it  to  reniTiin  in  the  possession  of  the 
defendant,  who  loses  it  through  some  negligence  on  his 
I)art  or  by  his  willful  misappropriation  thereof.  In 
such  a  case,  the  plaintiff'  undoubtedly  has  a  remedy 
by  action  against  the  officer.  This  remedy,  however,  is 
cumulative,  and  he  may  disregard  it  and  pursue  his 
remedy  by  taking  out  an  alias  writ.^**  This  rule  is 
generally  applicable  to  all  concurrent  remedies  exist- 
ing in  favor  of  the  plaintiff.    Thus  he  may  be  entitled 

27  Trapnall  v.  Richardson,  13  Ark.  543,  .'^S  Am.  Dec.  33S;  Mclver 
V.  Ballard,  i)G  Ind.  7U;  McWilliams  v.  Myers,  10  Iowa,  325. 

2»  Howaril  v.  Bennett,  72  111.  297:  Lustfield  v.  Ball,  103  Mich.  17; 
Clark  V.  Reiniger,  60  Iowa.  507;  Walker  v.  McDowell,  4  S.  &  M.  US, 
43  Am.  Dec.  47G;  I'arlccr  v.  Dean,  45  Miss.  408:  Col  man  v.  Mansfield, 
1  Miles,  5G;  Telford  v.  Cox.  15  Lea,  298:  Bank  of  Tennessee  v. 
Turney,  7  Humph.  271;  Murphy  v.  Partee,  7  Baxt.  373;  Cornelius  v. 
Burford,  28  Tex.  202,  91  Am.   Dec.  309. 

2«  McKecUy  v.  Webster,  170  Pa.  St.  G24;  Bole  v.  Bogardis,  86  Pa. 
St.  37;  (Jrceu  v.  Burke.  23  Wend.  490. 

»•  Cooloy  V.  Ilarper,  4  Ind.  454. 


§  50  ISSUING  ALIAS  AND  PLURIES  WIUTS.  230 

to  prosecute,  and  may  be  in  the  actual  lu'osecution  of, 
supplemental  proceedings.  These  proceedings  do  not 
constitute  any  bar  to  the  issuing  of  an  alias  execution, 
nor  does  the  issuing  of  such  execution  suspend  or  oth- 
erwise affect  such  supplemental  proceedings.^*-  Before 
a  concurrent  remedy  by  way  of  recovery-  of  the  value  of 
property  levied  upon  can  impair  the  right  to  issue  an 
alias  writ,  it  must  appear  that  such  remedy  has  sup- 
planted or  taken  the  place  of  the  judgment.  Thus  the 
decisions  are  not  in  harmony  respecting  the  result  of 
the  forfeiture  of  a  forthcoming  or  delivery  bond  condi- 
tioned that  the  obligors  therein  will  produce  the  prop- 
erty levied  upon  when  required  for  the  satisfaction  of 
the  judgment.  In  some  of  the  states  such  forfeiture 
results  in  a  statutory  judgment  upon  which  the  obligee 
may  issue  an  execution,  and  it  has  hence  been  claimed 
that  the  original  judgment  is  merged  in,  or  satisfied 
by,  this  statutory  judgment,  and  hence  that  no  further 
execution  can  issue  on  the  former,  and,  if  issued,  is 
void.^^  Where,  on  the  other  hand,  the  effect  attrib- 
uted to  tlie  forfeiture  of  a  forthcoming  or  delivery  bond 
is  not  equivalent  to  a  satisfaction  of  the  judgment,  an 
alias  writ  may  issue  notwithstanding  the  plaintiff  has 
a  concurrent  and  adequate  remedy  by  an  action 
against  the  sureties  upon  the  bond.^^  Of  course,  if  it 
appears  from  the  return  of  a  writ  of  execution,  or  oth- 
erwise, that  all  property  levied  upon  thereunder  has 
been  disposed  of,  and  that  the  proceeds  thereof  do  not 

31  Farqueharson  v.  Kimball,  18  How.  Pr.  33;  Lilliendabl  v.  Feller, 
man,  11  How.  Pr.  528;  Vogelalm  v.  Smith,  95  N.  C.  254. , 

32  Douglas  V.  Tnombly,  25  Ark.  124;  Joyce  v.  Farquhar.  1  A.  K. 
Marsh.  2G;  Witherspoon  v.  Spring,  3  How.  (Miss.)  GO,  32  Am.  Dec. 
310;  Carroll  v.  Fields,  (J  Ycrg.  305. 

33  iiopkinc;  V.  Land.  4  Ahi.  427;  Patton  v.  Ilanimcr,  ;!:'>  .\la.  307; 
Tronary  v.  Cheever,  48  III.  28;  Cole  v.  Itulx'iLsou,  G  Tex.  :j.">G,  55  Am, 
Dec.  784. 


231  ISSU]N(;  ALIAS  AND  rJX'KIES  WIUTS.  §  50 

satisfy  llie  judgment,  an  alias  writ  may  issue  for  the 
balance,*'*'^ 

The  issuing  of  an  alias  instead  of  a  venditioni  ex- 
ponas is  an  irregularity  rather  than  a  nullify;  and  long 
delay  on  the  part  of  the  defendant  will  estop  him  from 
urging  such  irregularity."'^  lu  truth,  as  v/c  shall  here- 
after show,  an  officer  levying  an  execution  upon  ikt- 
sonal  property  is  authorized  to  prorced  to  the  sale 
thereof,  though  after  the  return  of  the  writ;  and  when 
.1  venditioni  exponas  issues  commanding  such  sale,  it 
does  not  confer  additional  authority  upon  the  officer, 
but  merely  requires  him  to  exercise  his  authority  al- 
ready existing.  Such  being  the  case,  the  issuing  of  an 
alias  Avrit  and  a  sale  thereunder  of  property  already 
levied  upon  cannot  prejudice  the  defendant,  and  must 
be  regarded  as  valid,  because  it  would  have  been  so 
had  no  alias  whatsoever  issued."***  There  may  be  cir- 
cumstances, however,  in  which  the  inference  is  justified 
that  the  levy  under  the  original  writ  was  abandoned 
and  a  new  levy  made  under  the  alias  writ,  in  which 
event  a  salethereunder  must  depend  uponthe  last  levy. 
ITence,  where  the  return  under  an  alias  writ  showed  a 
levy  upon  the  property  therein  described,  but  made  no 
reference  to  any  prior  levy  having  been  made  there- 
on, and  in  Ihe  last  levy  was  included  some  property 
not  seized  under  the  former  writ,  it  was  held  that  these 
facts  disclosed  an  abandonment  under  the  first  levy, 
and  that  the  validity  of  the  second  levy  must  be  de- 
termined as  if  no  prior  levy  had  been  made.^''    As  be- 

3*  I.loyd  V.  AVyckoff,  11  N.  J.  L.  21S;  Coming  v.  Burdick  4  Mc- 
Lean, 133. 

3B  Kerr  v.  Cominissionors,  S  Biss.  27G. 

36  Dryer  v.  Graham,  58  Ala.  G23:  Stein  v.  Chambliss,  IS  Iowa.  474; 
rotfs  Appeal,  20  Pa.  St.  253;  Beebc  v.  United  States,  IGl  U.  S.  104. 

3T  Missinier  v.  Ebersok-,  S7  Pa.  St.  109. 


§  51  ISSUING  ALIAS  AND  PLURIES  WRITS.  232 

tween  the  j)arties  to  the  writ,  however,  the  issuance  of 
nil  alias  is  no  more  than  prima  facie  evidence  of  the 
waiver  of  the  levy,  which  may  be  rebutted  by  other 
evidence  showing  no  intention  to  make  such  waiver.^** 
The  courts  of  other  states  maintain,  on  the  other  hand, 
that  after  the  levy  of  the  original  writ  there  is  no  au- 
thority to  issue  an  alias  where  it  appears  that  the 
property  levied  upon  has  not  been  disposed  of,  and 
hence  that  the  second  writ  and  the  proceedings  there- 
under, especially  when  they  include  property  not 
levied  upon  under  the  original  writ,  are  void.^* 

§  51.  May  Issue  after  Year  and  a  Day  without  Scire 
Facias. — The  provisions  of  the  common  law,  that  exe- 
cution may  issue  within  a  year  and  a  day  after  judg- 
ment, and  provisions  of  a  like  nature  in  the  statutes  of 
the  various  states  of  these  United  States,  have  no  ap- 
plication to  alias  and  plurles  writs.  In  some  of  the 
states  the  time  within  w^hich  these  writs  may  be  sued 
out  is  limited  by  statute.  But  in  tlie  absence  of  statu- 
tory regulation  to  the  contrary,  if  an  original  execu- 
tion is  issued  within  the  time  prescribed  by  law,  and 
is  thereafter  returned  unsatisfied,  it  is  no  longer  nec- 
essary as  between  the  original  parties  to  revive  the 
judgment  by  scire  facias.  An  alias  writ  may  issue  at 
any  time  subsequent  to  such  return,  and  while  the 
judgment  remains  in  force.'*^     It  has  even  been  held 

3s  llarlan  v.  Harlan,  1-1  Lea,  107,  139. 

■'•sFriyer  v.  McNaughtou,  110  Mich.  22;  Sullon  v.  Mayre,  81  Va. 
329. 

40  Jordan  v.  Petty,  5  Fla.  320;  Dowsnian  v.  Totter,  1  Mo.  518; 
Piorce  v.  Crane,  4  How.  Pr.  257;  McSmith  v.  Van  Deusen,  9  How.  Pr. 
245;  Lindell  v.  Benton,  6  Mo.  3G1;  demons  v.  Brown,  9  Mo.  718; 
Flanagan  v.  Tinen,  53  Barb.  587;  Mitchell  v.  Che.stnut,  31  Md.  521; 
Tliorp  V.  Fowler.  5  Cow.  446;  Craig  v.  .Tolinson,  Hardin,  529;  Lamp- 
sett  V.  Whitney,  2  Scam.  441;  Payne  v.  Payne's  Ex'rs,  8  B.  Mon.  391: 


233  ISSUING  ALIAS  AND  rLUUIE.S  WKITS.  §  5J 

that  this  rule  could  be  invoked  when  the  orij^inal  writ, 
though  isi-nied  by  the  clerk,  was  never  in  the  sheritl's 
liands."*^  The  souiulness  of  this  decision  )ii;i\"  well  be 
doubted.  The  reason  of  the  law  requiring  plaint  ill  to 
revive  his  judgment  by  seire  facias  after  a  year  and  a 
day  has  i)assed  without  the  issuing  of  a  writ  was,  that 
it  seems  ini[)robable  that  plaintiff  would  remain  so 
long  inactive  unless  the  judgment  had  been  paid,  lie 
is,  therefore,  not  allowed  to  proceed  without  giving  de- 
fendant notice.  The  failure  to  take  a  writ  from  the 
clerk's  otlice  shows  a  degree  of  inaction  scarcely  less 
than  that  shown  where  the  writ  is  not  called  for  at 
all.*"  If  it  appears  that  property  was  sold  under  an 
alias  writ  issued  more  than  a  year  and  a  day  after  the 
entry  of  the  judgment,  it  will  be  presumed,  in  the  ab- 
sence of  evidence  to  the  contrary,  that  an  original  writ 
had  issued  within  a  year  and  a  day,  or,  in  other  words, 
that  the  alias  writ  was  supported  by  other  valid  writs 
preceding  it.  It  will  be  assumed  that  if  the  alias  had 
irregularly  issued,  the  defendant  would  have  taken 
some  proceeding  to  question  or  vacate  it."*^ 

§  52.  When  may  Issue  Vv^ithout  Return  of  Former  Writ. 
The  issuing  of  an  alias  writ  is  no  doubt  always  within 
the  power  of  the  court,  while  the  judgment  continues 

Jewett  V.  Hoogland,  30  Ala.  716;  Bank  of  Mississippi  v.  Catlett,  5 
How.  (Miss.)  17.");  Abbey  v.  Com.  Bank  of  Now  Orleans.  31  Miss. 
434.  So  alias  writs  may  issue  after  the  dealli  of  (k'fend.int.  witli- 
out  prosecuting  any  proceedings  by  scire  facias,  wliere  the  orii:inal 
had  issued  and  been  levied  in  liis  lifetime:  CollinjrsworTli  v.  Horn, 
4  Stew.  &  P.  237,  24  Am.  Dec.  753;  Clark  v.  Kirksey,  54  Ala.  210. 

<i  Nicholson  v.  Tlowsley,  I.itt.  Sel.  Cas.  .301. 

<2  Kclley  V.  Vincent,  8  Ohio  St.  415,  deciding  that  "suing  out  exe- 
<-ution"  requires  actual  or  constructive  delivery  of  the  writ  to  the 
jjheriff. 

♦3  Sellers  v.  Hayes.  17  Ala.  749:  Pollard  v.  Cocke,  19  Ala.  ISS; 
Beebe  v.  United  States,  IGl  U.  S.  104. 


§  53  ISSUING  ALIAS  AND  PLUllIES  WRITS.  2;u 

in  force.  This  power  will  be  exercised,  under  the  dis- 
cretion of  the  court,  in  a  great  variety  of  cast?s.  It  may 
often  happen  that  the  execution  has  not  been  returned, 
and  through  some  accident  cannot  be.  In  all  suck 
cases  the  court  may,  no  doubt,  on  a  proper  showing,  al- 
low an  alias  or  pluries  to  issue,  without  requiring  the 
return  of  the  former  writ.'" 

§  53.  On  Judgment  Satisfied  by  Fraud  or  Mistake— A 
mistake  may  occur  in  issuing  a  writ  by  which  the 
amount  directed  to  be  collected  may  be  less  than  that 
to  which  plaintiff  is  entitled  under  his  judgment.  In 
such  an  event,  the  plaintiff  is  not  without  remedy.  The 
court  will  not  harass  the  defendant  witli  the  troubh' 
and  expense  of  two  writs  without  imposing  on  plaintiir 
such  terms  as  maj  be  requisite  to  indemnify  the  former 
from  all  loss  arising  from  the  negligence  or  mistake  of 
the  latter.  But  if,  after  notice  of  the  mistake,  the  de- 
fendant persists  in  his  refusal  to  pay  the  balance  due,  a 
new  writ  will  be  ordered.*^  But  where  an  execution 
issued  for  the  proper  sum,  and  by  the  plaintiff's  direc- 
tions a  levy  was  made  for  a  smaller  amount,  it  was  held 
that  no  further  writ  should  issue.  ''An  execution,'^ 
said  the  court,  '*is  an  entire  thing.  If  a  plaintiff  in  a 
judgment  issues  an  execution,  and  directs  an  amount 
less  than  the  whole  sum  to  which  he  is  entitled  to  be 
levied,  he  cannot  subsequently  issue  another  execution 
for  the  balance.  It  cannot  be  permitted  that  a  defend- 
ant should  be  harassed  by  repeated  executions."  ** 

**  In  Georgia,  whore  an  original  execution  was  returned,  and 
then  lost,  it  was  held  that  the  alias  ought  not  to  have  issued  with- 
out an  order  of  court.     Watsvon  v.  ITalsted.  0  (la.  2~~>. 

-•'TTunt  V.  Passmore,  2  Dowl.  P.  C.  414;  Langdou  v.  Lnngdon,  1 
Root.  4.54;  People  v.  .Judges  of  Chatauqne,  1  Wind.  73.  See,  also, 
Moore  v.  Edwards,  1  Bail.  23;  Sims  v.  Campl)ell,  1  McCord's  Ch.  53, 
10  Am.  Dec.  595. 

46  People  V.  Onondaga  C.  P.,  3  Wend.  331. 


235  ISSUING  ALIAS  AND  PLUKIES  WKITS.  §  5$ 

If  an  cxetution  has  been  issued  fur  a  sum  less  lliaii 
that  remaining  due  on  the  judgment,  ov,  tliough  issued 
for  the  full  sum,  the  officer  has  been  dirccU-d  to  levy 
or  collect  a  less  sum,  there  is  no  longer  a  right  to  an 
alias  writ  upon  mere  application  to  the  clei-k  of  the 
court.  The  court  may,  however,  direct  an  alias  to  is- 
sue. It  will  refuse  the  demand  for  an  alias  if  it  ap- 
pears that  the  action  of  the  plaintiff  or  his  attorney  has 
been  induced  by  a  desire  to  harass  the  defendant  witii 
numerous  writs,  and  perhaps  in  some  cases  where  such 
desire  is  not  clearl^^manifested.but  no  excuse  is  never- 
theless shown  for  the  irregular  course  ]»ursued.  Thus. 
where  the  writ  failed  to  specify  that  interest  was  to  be 
collected  upon  the  judgment,  the  plaintiff  was  re- 
garded as  choosing  not  to  assert  the  right  given  to  him 
to  collect  interest,  and  it  was  held  that  he  could  not  be 
permitted  to  trouble  the  defendant  by  a  second  execu- 
tion.*'' In  a  case  in  Wisconsin  it  appeared  that  the 
attorney  for  the  plaintiff  endorsed  on  the  writ  that 
the  sheriff  was  to  levy  and  collect  the  judgment,  less 
one  thousand  dollars  and  interest,  which  it  was  then 
supposed  would  be  a  part  of  a  judgment  of  foreclosure. 
It  was  subsequently  ascertained  that  this  endorsement 
was  made  through  misapprehension,  and  an  alias  writ 
issued  for  the  amount  remaining  due  on  the  original 
judgment.  A  motion  to  set  aside  this  writ  was  denie<l 
by  the  trial  court,  and  its  action  was  afllirmed  on  ap- 
peal, though  the  o])inion  proceeded  partly  upon  the 
ground  that  it  would  have  been  necessary  for  an  alias 
writ  to  have  issued  whether  this  mistake  on  the  part 
of  the  plaintiff's  attorney  had  occurred  or  not.'*^  If  a 
motion  is  made  to  vacate  an  entry  of  satisfaction,  be- 

*-  Todd  V.  Botcliford,  SG  N.  Y.  517. 

*8  Bank  of  Sheboygan  T.  Trilling,  73  Wis.  1G3. 


^  54  ISSUING  ALIAS  AND  PLURIES  WRITS.  236 

cause  made  by  an  attorney  without  authority,  the  su- 
preme court  will  not  review  the  action  of  the  subordi- 
nate court,  if  there  was  a  conflict  of  evidence.*'*  If  an 
execution  creditor  by  mistake  gives  a  receipt  or  enters 
a  satisfaction  of  judgment,  he  may,  upon  motion,  be 
relieved  therefrom  and  obtain  an  order  authorizing  the 
issuing  of  another  writ."** 

§  54.  After  Sale  under  Void  Writ,  or  where  Defendant 
had  No  Title. — An  execution  may  be  returned  satisfied, 
and  yet  it  may  turn  out  that  no  actual  satisfaction  has 
taken  place.  This  may  happen — 1.  When  the  writ  or 
the  levy  is  void,  and  therefore  does  not  transfer  the  ti- 
tle to  the  property  seized  and  sold  under  it;  2.  When 
the  entry  of  satisfaction  was  made,  either  wrongfully 
or  by  mistake;  and  3.  When  the  property  sold  was  pur- 
chased by  the  plaintifl",  but  did  not  belong  to  the  de- 
fendant, and  plaintiff  has  therefore  been  compelled  to 
account  for  it  to  the  true  owner.  In  the  first  class  of 
cases,  the  void  writ  is,  in  legal  effect,  no  writ;  and 
w^hen  the  defendant  has  not  lost,  nor  the  plaintiff  ac- 
quired, anything  by  the  writ,  it  is  not  to  be  disputed 
that  a  new  writ  may  and  ought  to  issue.-'^  In  cases  of 
the  second  class,  the  proi^riety  of  ordering  a  second 
writ  is  also  indisputable.  "Every  court  has  control 
over  its  process,  and  of  entries  upon  its  records;  and 
whenever  process  is  irregularly  issued,  or  the  entry  of 

48  Fuller  V.  Baker,  48  Cal.  632. 

60  McNeal  v.  Huut,  6  Kan.  App.  070. 

61  Hughes  V.  Streeter,  24  111.  647,  76  Am.  Dec.  777;  Flold  v.  Tauld- 
ing,  3  Abb.  Pr.  139;  cltiug  Suydam  v.  Holden,  decided  l)y  N.  Y.  court 
of  appeals  in  October.  1853,  and  not  reported;  FrecMiinn  on  Judg- 
ments, sec.  478,  citing  Stoyel  v.  Cady,  4  Day,  22,";  Arnold  v.  Fuller, 
1  Ohio,  466;  Townsend  v.  Smith.  20  Tex.  465,  70  Am.  Dec.  400;  Tate 
V.  Anderson,  9  Mass.  92;  Gooch  v.  Atkins.  14  :\rass.  379;  Ladd  v. 
Blunt,  4  Mass.  402;  Watson  v,  Keissig,  24  111.  281,  76  xim.  Dec.  746. 


237  ISSUING  ALIAS  AND  I'LUUIES  WRITS.  §  54 

the  s.atisf action  of  a  juclj^ment  is  improperly  made,  the 
court  has  power  to  iiKjiiire  into  the  subject,  and  to 
cause  the  former  t(^  be  set  aside  and  the  latter  to  be 
vacated.  It  is  believed  to  be  the  uniform  practice  to 
do  so  on  motion.  This,  it  is  true,  is  a  summary  mode  of 
procedure,  and  imijortant  rights  and  interests  and  dif- 
ficult questions  may  be  involved  which  are  summarily 
tried  by  the  court  without  the  intervention  of  a  jury; 
but  these  objections  have  not  been  regarded  as  sufii- 
cient  to  prevent  courts  from  exercising  their  jurisdic- 
tion in  this  manner."  °"  In  Kentucky,  an  agent  of  the 
plaintiff,  through  mistake,  indorsed  a  credit  on  an  exe- 
cution. Some  time  afterw^ard,  the  plaintiff  sued  out 
another  writ,  disregarding  this  indorsement.  A  mo- 
tion having  been  made  to  quash  this  last  writ,  the 
court  of  appeals  said:  "We  do  not  understand  that  a 
reeeipt  indorsed  upon  execution,  by  an  agent,  so  neces- 
sarily precludes  the  plaintiff  from  taking  out  another 
execution  as  that  he  will  have  to  cause  the  receipt  to 
be  erased  by  oi'der  of  the  court  before  he  can  legally 
obtain  another.  It  no  doubt  will  be  much  the  most 
prudent  for  clerks  to  refuse  a  new  execution,  under 
such  circumstances,  without  an  order  of  court.  But 
if  a  second  execution  does  go,  and  it  turns  out  that 
plaintifl'  was  entitled  to  it,  we  do  not  think  the  issuing 
of  it  should  be  treated  as  irregular,  and  subject  the 
proceedings  under  it  to  be  quashed.''  '^'^  But,  no  doubt, 
the  better  opinion  is,  that  when  a  judgment  appears 
to  be  satisfied  of  record,  this  satisfaction  ought  to  be 

62  ^Vilson  V.  Stilhvell,  14  Ohio  St.  4G7;  see  also  Ijaii^'hlin  v.  Fair- 
banks. 8  Mo.  3G7.  In  both  these  cases,  satisfaction  had  been  ac- 
knowledged by  persons  who  were  not  entitled  to  the  fruits  of  the 
iudgments.  McMithael  v.  Branch  Bank,  14  Ala.  490;  Aycock  v.  Har- 
rison, G.'?  N.  C.  145;  Anderson  v.  Nicholas.  4  Robt.  G30. 

•3  Frankfort  Bank  v.  Markley.  1  Dana,  373. 


§  54  ISSUING  ALIAS  AND  PLURIES  WRITS  238 

vacated  before  anything  further  is  done  under  the 
judgment.'*'*  Where  property  is  levied  on,  but  returned 
unsold  for  want  of  title,  the  supposed  satisfaction  pre- 
sumed to  arise  from  the  levy  is  shown  to  have  been  no 
satisfaction  whatever.  Therefore  another  writ  may  is- 
sue.^°  The  statute  22  Henry  VIII.,  c.  5,  gave  a  remedy 
to  the  creditor  to  whom  the  debtor's  land  had  been  de- 
livered, under  an  elegit,  when  the  tenant  by  elegit  was 
thereafter  evicted  without  any  fault  on  his  part. 

It  has  been  held  in  New  York  that  this  statute  be- 
came a  part  of  the  common  law  of  that  state,  because 
it  was  a  part  of  the  general  law  of  England  when  the 
colony  was  settled  under  the  charter  of  the  Duke  of 
York;  and  further,  that  when  the  elegit  was  abolished 
in  that  state,  the  equitable  principles  of  the  statute  of 
Henry  VIII.  remained  in  force,  and  were  so  far  appli- 
cable to  sales  under  execution  as  to  entitle  plaintiff  to 
equitable  relief  on  the  failure  of  title  to  property  pur- 
chased by  him  under  execution  against  defendant.®** 
The  provisions  of  the  statute  of  Henry  VIII  were  reen- 
acted  in  the  territory  comprising  the  present  states  of 
Massachusetts,  Maine,  and  New  Hampshire.  In  those 
states,  it  is  clear  that,  when  plaintiff  wholly  loses  the 
lands  taken  by  him  under  an  extent  or  sold  under 
execution  on  account  of  the  invalidity  of  defendant's 
title,  or  of  the  proceedings  under  the  writ,  he  may,  by 
scire  facias,  obtain  a  new  execution  for  the  whole 
debt;®''  and  when  it  turns  oat  that  defendant  had  a 

s*  Poor  V.  Denver,  1  Ired.  391;  Hughes  v.  Streeter,  24  111.  (>47,  76 
Am.  Dec.  777;  Snead  v.  Rhodes,  2  Dev.  &  B.  386;  Rikeman  v.  Kohn, 
48  Ga.  183. 

B5  reddle  v.  HolUnshead,  9  Serg.  &  R.  277;  Coleman  v.  Mansfield, 
1  Miles.  56. 

56  Bank  of  Utlca  v.  Mersereau,  3  Barb.  Ch.  586,  49  Am.  Dec.  180. 

r.7  Perry  v.  Perry,  2  Gray,  326;  Dewing  v.  Durant,  10  Gray,  29; 
r..iikor  V.  Wi'Ddell,  12  N.  H.  119;  Green  v.  Bailey,  3  N.  H.  33;  Pills- 


239  ISSUING  ALIAS  AND  i'l.U'KIES  WRITS.  §  54 

less  estate  thau  lliat  extended,  tlu-  plaintiff  may  ob- 
tain execution  to  compensate  iiim  for  the  difference  be- 
tween tlie  value  of  the  estate  extended  and  the  estaL«* 
obtained.'""''  I>ut  it  must  in  all  cases  be  clear  that  the 
]>laintiir  has  lost  the  benelit  of  his  purchase."®  But 
there  frr-quently  ari.se  cases  to  Avhich  no  statute  like 
I  hat  of  ileniy  Xlll.  can  be  applied,  either  because  no 
such  statute  is  in  force  in  the  state,  or  because  the 
I)roperty  sold  is  not  of  the  kind  conteiH])lated  by  the 
statute.  "In  such  a  case,  if  the  plaintill  be  the  pur- 
chaser, a  satisfaction  is  produced  without  any  result- 
ing benefit  to  the  plaintiff,  or  any  detriment  to  the  de- 
fendant. The  question  then  arises.  Is  this  satisfaction 
irrevocable,  or  may  the  plaintiff  have  it  vacated,  and 
ju'ocure  a  new  execution?  Upon  this  question,  the  au- 
thorities are  quite  evenly  divided,  and  are  clearly  ir 
reconcilable.  On  the  one  hand,  it  is  insisted  that,  as 
1he  maxim  caveat  emptor  applies  to  all  pui'chasers  at 
sheriff's  sales,  the  purchaser  takes  all  risks;  and  there- 
fore, that  he  cannot  have  the  sale,  and  the  satisfaction 
thereby  produced,  vacated  on  account  of  the  failure  of 
defendant's  title.  On  the  contrary,  it  is  claimed  tliat 
"the  doctrine  of  caveat  emptor  has  its  leoitimate  effect 
in  precludiuijj  any  idea  of  warranty  by  the  defendant  in 

t)ury  V.  Smyth.  2.j  Mo.  427;  Dennis  v.  Arnold,  12  Met.  -H9;  Stewart 
V.  Allen,  5  Me.  103;  Ware  v.  Tike.  12  Me.  303.  See  It.  S.  of  Me. 
1SS3,  p.  713,  set'.  143;  Grosvenor  v.  Chesley.  48  Me.  3G9;  Soule  v.  Buck, 
:>.'>  Me.  30;  Gen.  Stat,  of  Mass.  ISOO.  p.  519.  sec.  22;  Kendiick  v. 
Wentworth.  14  Mass.  57;  Wilson  v.  Green,  10  Pick.  433.  whore  the 
rule  was  applied  to  personal  property;  Dennis  v.  Saylos.  11  Mot.  2.33; 
Rev.  Laws  of  Vt..  3.S80,  sec.  1593;  Pratt  v.  .Tones.  2.".  Vt.  303; 
Baxter  r.  Sliaw.  28  Vt.  5G0;  Royce  v.  Stroujj;.  11  Vt.  248:  Bell  v. 
Roberts.  13  Vt.  582;  Hyde  v.  Taylor,  19  Vt  599;  Briggs  v.  Green, 
3.3  Vt.  505. 

58  Coos  Bank  v.  Brooks.  2  N.  H.  148;  Soule  v.  Buck,  55  Me.  30; 
United  States  v.  Poole.  5  Fod.  Rop.  412. 

63Batcheldor  v.  Wason,  8  N.  H.  121. 


^  54  I8SU1NG  ALIAS  AND  PLURIES  WRITS.  240 

execution,  or  by  the  sheriff';  and  therefore,  that  it  in- 
terposes no  obstacle  to  prevent  the  plaintiff  from  ob- 
taining that  relief  to  which,  upon  principles  of  natural 
justice,  he  seems  entitled."****  In  South  Carolina,  a 
motion  was  made  to  set  aside  an  entry  of  satisfaction 
and  to  permit  the  issuing  of  another  writ,  on  the 
ground  that  the  goods  from  the  sale  of  which  the  ap- 
parent satisfaction  had  resulted  were  not  the  property 
of  the  defendant,  and  their  value  had  been  recovered 
by  their  owner  in  actions  of  trespass  against  the  plain- 
tiff and  the  sheriff.  The  motion  was  denied  because  in 
such  a  case  "the  plaintiff  levies  and  sells  at  his  own 
risk  and  with  notice  that  the  sales  will  be  applied  in 
satisfaction  of  his  execution,  though  he  may  be  made 
responsible  for  damages,  if  he  has  tortiously  sold  the 
}>r(>perty  of  another  person  as  the  property  of  the  de- 
fendant." **^  In  North  Carolina,  the  statute  provides 
til  at  a  purchaser  at  execution  sale  who  has  been  de- 
prived of  the  property  purchased  or  been  compelled 
to  pay  damags  to  the  real  owner,  in  consequence  of  a 
defect  in  the  defendant's  title,  may  recover  from  the 
defendant  in  an-  action  on  the  case  the  amount  paid  for 
such  property,  with  interest.  The  remedy  given  by 
this  statute  has  been  held  to  be  exclusive,  and  the  sale, 
to  the  amount  realized  from  it,  an  irrevocable  satis- 
faction of  the  judgment.**-    In  Ohio  and  Pennsylvania, 

«o  Freeman  on  Juclgnieuts,  sec.  478.  In  Piper  v.  Elwood,  4  Denio, 
IC"),  plaintiff  was  allowed  to  recover  in  an  action  on  a  judgment 
which  had  been  satisfied,  on  proving  that  the  satisfaction  was  pro- 
duced by  a  sale  of  property  which  defendant  had  recovered  because 
it  was  exempt  from  execution.  In  Tennessee,  the  revival  of  judg- 
ment where  it  was  satisfied  by  sale  of  property  not  belonging  to 
dpfeiidant  is  provided  for  by  statute.  Edde  v.  Cowan,  1  Sneed,  290; 
Swaggcrty  v.  Smith.  1  Ileisk.  A0?>. 

61  .Tones  v.  Burr,  5  Strob.  147.  .53  Am.  Poc  G99. 

82  Haleombe  v.  Loudermilk,  3  Jones,  491;  ^Vall  v.  Fairloy,  77  N.  C. 
105. 


241  ISSUING  ALIAS  AND  PLUKIES  WRITS.  §  54 

no  relief' can  be  had  at  law  where  the  property  sold  is 
lost  to  plaiiitill"  because  of  defects  in  the  defendant's 
title/'"    In  the  first-named  state,  manifestly,  a  doubt 
has  arisen  with  respect  to  the  propriety  of  th<*  early 
decisions  on  the  subject,  and  the  rule  maintained  in 
such  decisions  has  been  limited  rather  than  extended. 
Thus  where  a  mortj;agee  who  recovered   judgment  at 
law  on  some  of  the  notes,  secured  by  his  mortgage,  and 
sold  real  property,  the  title  to  which  he  failed  to  ob- 
tain on  account  of  a  prior   conveyance  made    by  the 
mortgagor,  of  which  he  was  ignorant,  commenced  sub- 
sequently a  suit  to  foreclose  the  equity  of  redemption, 
it  was  held  that  the  amount  bid  at  the  execution  sale 
did  not  in  equity  constitute  a  satisfaction,  and  could 
not  be  asserted  by  the  mortgagor  as  such.^    The  court, 
however,  declined  to  consider  the  question  whether,  on 
a  bill  filed  by  the  plaintiff  to  vacate  the  apparent  sat- 
isfaction, it  would  act  or  not,  and  restricted  itself  to 
determining  that  it  would  not,  at  the  instance  of  the 
mortgagor,  extend  him    any  aid.     In  Minnesota,  it   is 
clear  that  relief  may  be  obtained  in  equity  by  a  plain- 
tiff when  the  title  to  lands  purchased  by  him  on  exe- 
cution fails  without  his  being  guilty  of  any  neglect  in 
making  his  purchase,  as  where  he  relied  upon  an  ab- 
stract of  title,  which  omitted  a    previous   conveyance 
made  by  defendant.""*    Like  relief  was  extended  in  the 
same  state  where  the  plaintiff  bid  upon  certain  lots  un- 
der the  belief  that  they  were  the  same  lots  levied  upon 
under  an  attachment  issued  in  the  case,  when  in  fact 
the  sheriff  had,  through  a  mistake  on  his  part,  levied 

«3Vattier  v.  Lytle's  Ex'r,  G  Ohio,  482;  Freeman  v.  Caldwell,  10 
Watts,  10. 

•♦  Hollister  v.  Dillon,  4  Ohio  St.  198. 
w  First  Nat.  Bank  v.  Rogers,  22  Minn.  224. 
Vol.  I.— 16 


§  54  ISSUING  ALIAS  AND  PLURIES  WRITS.  242 

upon  other  lots  wbicU  Avere  subject  to  liens  paramount 
to  plaintiff's  judgment,'*^'  also  when  it  appears  that  an 
execution  was  apparently  satisfied  by  the  sale  of  per- 
sonal property,  but  that  it  proved  to  be  subject  to  a 
iiiort£?age,  and  the  mortgagee  recovered  the  full  value 
thereof  from  the  execution  creditor.^' 

If  the  plaintiff  obtains  some  title  to  the  property 
l.urchased,  but  less  than  he  supposed  to  be  subject  to 
sale  when  making  his  bid,  he  is  not,  we  believe,  enti- 
tled to  relief,  whether  he  proceeds  by  motion,  or  by  a 
suit  in  e(iuity.  This  was  so  decided  where  the  purchaser 
believed  that  he  would  acquire  the  fee,  and  after  the 
sale  discovered  that  the  defendant's  estate  was  for  life 
only.  The  court  said:  ''He  is  not  entitled  to  such  relief 
if  he  obtains  any  'beneficial  interest'  by  his  purchase, 
and  the  courts  cannot  measure  the  benefit  or  value  of 
the  interest  acquired  if  it  is  substantial."  ^"^^ 

Generally,  where  the  relief  is  allowed  at  all,  it  can  be 
procured  without  resort  to  equity,  as  by  permitting  the 
sheriff  to  correct  his  return  so  as  to  show  that  no  satis- 
faction was  realized,  or  by  ordering  the  apparent  satis- 
faction vacated  on  motion  or  by  scire  facias  and  direct- 
ing an  alias  writ  to  issue,^^  and  in  some  states  relief 
can  be  had  either  by  motion  in  the  original  case,  or  by 
a  suit  in  equity  to  revive  and  reinstate  the  judgment.*"* 

68  Lay  V.  Shanl'hut,  6  Minu.  182,  80  Am.  Dec.  44G;  Shaubhut  v. 
Hilton,   7  Miuu.  50G. 

67  Osltorne  v.  Wilson,  37  Minn.  8. 

67a  Gonco  v.  McCoy,  101  Tenn.  587,  593,  70  Am.  St.  Rop.  714. 

esMagwire  v.  Marks,  28  Mo.  103,  75  Am.  Dec.  121;  Whiting  v. 
Bradley,  2  N.  H.  79;  Adams  v.  Parmeter,  5  Cow.  280;  Richardson  v. 
McDougall,  19  Wend.  80;  Townsend  v.  Smith.  20  Tex.  465.  70  Am. 
Dec.  400;  Andrews  v.  Richardson.  21  Tex.  287;  Ritter  v.  Henshaw, 
7  Iowa,  98;  Tndor  v.  Taylor.  2»>  Vt.  144;  Cowlos  v.  Bacon,  21  Conn. 
4.51,  5C  Am.  Dec.  371;  CliaiiiluM-s  v.  Cochran,  18  Iowa,  159. 

69  Cross  V.  Zane,  47  Cal.  002;  Schorr  v.  Himmelman,  53  Cal.  312. 


^43  ISSUING  ALIAS  AND  I'LUHIES  WRITS.  §  55 

The  statute  in  Iowa  i)iovides  that  an  execution  sale 
may  be  sot  aside  "where  the  judgment  on  which  execu- 
tion issued  was  not  a  lien"  on  the  property  sold.  If, 
however,  the  jud.unient  was  a  lien  on  the  property,  the 
l)laintin"  i>nreliasin^  is  without  redress,  though  the 
I)roperty  is  ultimately  lost  to  liim  by  reason  of  para- 
mount liens. '^"  Section  seven  hnndred  and  ei;^ht  of  the 
Code  of  Civil  Procedure  of  California  provides  that  if 
the  purchaser  of  property  at  sheriff's  sale,  or  his  suc- 
cessor, fail  to  recover  possession  in  consequence  of  any 
irregularity  in  the  proceedings  concerning  the  sale,  or 
because  the  property  sold  was  not  subject  to  execution 
and  sale,  the  court  having  jurisdiction  thereof  must, 
after  notice  and  on  motion  of  such  party  in  interest  or 
his  attorney,  revive  the  original  judgment  in  the  name 
of  the  petitioner  for  the  amount  paid  by  such  pur- 
chaser at  the  sale.  This  statute  has  by  the  courts  of 
that  state  been  held  to  be  remedial  in  its  character, 
and  therefore  to  be  liberally  construed, and  hence  that, 
when  the  property  sold  does  not  belong  to  the  defend- 
ant in  execution,  it  must  be  held  not  to  be  subject  to 
execution  and  sale  within  the  intent  of  the  statute, 
and,  therefore,  if  the  purchaser  loses  possession  of  the 
property  after  its  purchase,  because  it  was  not  the 
property  of  the  defendant  in  execution,  he  is  entitled 
to  the  remedies  afforded  by  this  act.'^^ 

§  55.  Form  of  Alias. — An  alias  writ  should  contain 
all  the  paitieulars  embraced  in  an  original  writ;  and 
in  addition,  should  show  the  issue  of  the  former  writ, 
the  amount  realized  thereon,  and  the  sum  remaining 

70  Holtzinger  v.  Edwards.  51  Iowa,  383. 

71  Hitchcock  V.  Caruthers,  100  Cal.   100. 


§  55  ISSUING  ALIAS  AND  PLURIES  WRITS.  244 

due,  and  for  wliich  the  officer  is  to  levy."-  As  the  alias 
cannot  properly  issue  before  the  return  of  the  original, 
it  ought  not  to  be  tested  before  such  return.  In  Eng- 
land an  original  writ  of  fieri  facias  was  tested  in  term 
time  and  made  returnable  at  some  other  term,  and 
"in  all  continued  writs  the  alias  or  testatum  must  be 
issued  the  day  the  former  was  returnable."  By  this 
practice  there  was  a  continuity  in  time  between  the 
original  and  the  alias  writs,  or,  in  other  words,  there 
was  no  intervening  period  between  them.'''^  It  should 
appear  on  the  face  of  the  writ  that  it  is  an  alias  or  plu- 
ries,  and  not  an  original.  Hence,  the  command  in  the 
body  of  the  alias  was:  "You  are  commanded  as  you 
have  been  before,"  and  in  a  pluries:  "You  are  com- 
manded as  you  have  been  often  before."  "^^ 

Mere  errors  in  issuing  an  alias  or  pluries  writ, 
whether  in  regard  to  its  form  or  to  the  time  and  man- 
ner of  its  issue,  while  they  may  make  it  voidable,  do 
not  render  it  void.'^^  These  errors  may,  however,  con- 
stitute grounds  for  vacating  the  writ.  Thus  in  Ver- 
mont, where  a  judgment  had  been  satisfied  in  part,  but 
an  alias  execution  issued  thereon,  as  if  no  partial  sat- 
isfaction existed,  the  writ  and  the  levy  thereof  made 

T2  Chapman  v.  Bowlby,  8  Mees.  ^  W.  249;  Lee  v.  Neilson,  3  U.  C. 
Law  J.  72;  Oviat  v.  Vyner,  1  Salk.  318:  Smith  v.  Jones,  2  All.  N.  B. 
176;  Watson  v.  Halsted,  9  Ga.  275;  Bingham  on  Judgments  and 
Executions,  2G0;  Scott  v.  Allen,  1  Tex.  508;  Maupin  v.  Emmons,  47 
Mo.  304;  Fairbanks  v.  Devereaux,  48  Vt.  550. 

73  Touchin's  Case,  2  Salk.  699;  Union  Bank  v.  McCIung,  9  Humpb. 
91. 

74  Kellogg  V.  Buckler,  17  Ga.  187;  Scott  v.  Allen,  1  Tex.  508. 

75  Rammel  v.  Watson.  2  Vroom,  281;  Rushin  v.  Shields,  11  Ga.  636, 
56  Am.  Dec.  436;  State  v.  Tago,  1  Spears,  408,  40  Am.  Dec.  608; 
Bryant  v.  Johnson,  24  INIe.  307;  Mace  y.  Dutton,  2  Ind.  309,  52  Am. 
Dec.  510;  McMichael  v.  Knapp.  7  Cow.  413;  Graves  v.  Hall,  13  Tex. 
379;  Schroeder  v.  Young,  161  U.  S.  334. 


245  ISSUING  ALIAS  AND  i'LUUIES  WRITS.  §  56 

upon  real  property  were  set  asideJ^  A  second  execu- 
tion will  not  be  quashed  on  tli<.'  sole  ground  that  it  does 
not  purport  to  be  an  alias."'  Manifestly  the  rules  re- 
specting variances  and  other  defects  in  the  form  of 
original  are  equally  applicable  to  alias  and  pluries 
writs.  If,  by  the  decisions  in  the  state,  the  omission  of 
the  words  of  command  is  fatal  to  an  original,  it  must 
be  equally  fatal  to  an  alias  writ.'^ 

§  56.  Notice  of  Motion  for. — Where  the  original  exe- 
cution has  been  returned  unsatisfied,  wholly  or  in  part, 
an  alias  may  issue  without  any  notice  to  the  defend- 
ant.'^^ *  In  other  words,  where  the  propriety  of  issuing 
a  second  writ  is  apparent  from  an  inspection  of  the 
record  in  a  cause,  there  is  no  necessity  of  judicial  ac- 
tion. The  clerk  of  the  court,  in  the  discharge  of  his 
ministerial  duties,  should  issue  the  writ  on  application. 
If  at  some  stage  of  the  proceedings  there  has  been  a 
conditional  satisfaction,  as  where  the  defendant  has 
been  seized  in  execution,  and  it  appears  he  has  been  re- 
leased on  taking  the  poor  debtor's  oath,  or  personal 
property  has  been  levied  upon  sufficient  to  satisfy  the 
execution,  but  the  writ  or  the  levy  has  been  vacated,''" 
so  that  from  the  whole  record  there  can  be  no  question 
but  the  judgment  remains  unsatisfied,  the  clerk  is  au- 
thorized to  issue  an  alias  writ  without  being  directed 
to  do  so  by  any  order  of  the  court.^**  In  Massachusetts, 
it  seems  to  be  the  usual  practice,  before  issuing  an  alias 
on  a  judgment  for  alimony,  to  give  defendant  notice, 
that  he  may  have  an  opportunity  of  showing  that  pay- 

T8  Fairbanks  v.  Devereaux,  48  Vt.  550. 

T7  Bushons  V.  Taylor.  S2  Mo.  tJTl. 

T8  MaupLn  v.  Emmons,  47  Mo.  304. 

Tsa  .Johmson   v.    Huutiufftou.   IV,   Conn.  50. 

"  Westbrook  v.  Hays.  89  Ga.  101. 

80  McMauaman's  Petition.  IG  II.  I.  338. 


§  56  ISSUING  ALIAS  AND  TLURIES  WRITS.  24G 

ment  has  been  made;**^  but  the  court  may,  in  its  dis- 
cretion, issue  an  alias  without  such  notice.^"  When 
the  application  for  an  alias  is  made  without  returning 
the  original,  as  where  the  latter  is  alleged  to  be  lost, 
notice  should  be  given  to  the  defendant.^^  It  also 
should  be  given  in  all  cases  where  it  does  not  clearly 
appear  from  an  inspection  of  the  record  that  the  plain- 
tiff is  entitled  to  further  execution.  Thus,  where  the 
first  writ  M'as  issued  or  levied  for  a  sum  less  than  that 
due,  and  such  lesser  sum  w^as  collected  thereunder,  the 
plaintiff  has  no  absolute  right  to  further  execution. 
Leave  to  issue  another  writ  may  be  granted  in  the  dis- 
cretion of  the  court,  but  until  that  discretion  has  been 
exercised  and  an  order  made  directing  another  writ, 
the  clerk  has  no  authority  to  issue  it.^  So  if  the  judg- 
ment appears  to  be  satisfied,  but  it  is  claimed  that  such 
satisfaction  was  entered  by  mistake,  or  that  it  resulted 
from  a  sale  of  property  to  the  plaintiff,  the  title  to 
which  did  not  pass  by  the  sale,  or  that  for  any  other 
reason  he  has  not  received  satisfaction  of  his  judg- 
ment, he  may  move  the  court  to  vacate  the  record  or 
entry  of  satisfaction  and  for  leave  to  take  other  writs 
of  execution,  but  unless  such  leave  has  been  granted, 
the  clerk  has  no  power  to  issue  an  alias  or  pluries 
writ.®^ 

Without,  so  far  as  we    ran   discover,  any  auflScient 
reason  therefor,  the  courts  of  Florida  have  held  that  a 

81  Newcomb  v.  Newcomb,  12  Gray,  28. 

82  Chase  v.  Chase,  105  Mass.  385. 

83  Douw  V.  Burt.  1  Wend.  89.  In  Georgia,  notice  of  motion  to  l»- 
sue  an  alias  wlien  the  original  has  been  lost  is  not  necessary. 
Lowry  v.  Richards,  ♦52  Ga.  .370. 

84  Todd  V.  Botchford,  80  N.  Y.  517;  Sheboygan  Bank  v.  Trilling. 
75   Wis.   1G3. 

f>5  Williams  v.  Cable.  7  Conn.  119;  Zeigler  v.  McCormick,  13  Neb. 
25;  Tudor  v.  Taylor,  26  Vt.  444. 


-47  LSSUINU  ALIAS  AND  i'LUltlliS  WUiT.S.  §  06a 

citTk  lias  lU)  aulliorUy  to  issue  au  alias  (.'Xccutiuii  upon 
a  decree  in  cliaiu-ci y.  A  rule  of  c-ourt  in  iliaL  state  pro- 
vided that  linal  process  lo  cxci  utc  any  (1c<i-(M'  may,  if 
it  be  solely  fur  the  payincut  of  inouey,  be  by  a  writ  of 
execution  in  the  form  used  in  suits  at  conuiion  law.  It 
was  held  that  this  ruh>  gave  no  power  to  the  clerk, 
except  to  issue  au  orii^lual  writ,  and  that  power  hav- 
ing been  exhausted  by  its  issuance,  any  further  writ 
issued  by  him,  except  iu  obidience  to  au  order  of  court, 
was  void.*^ "" 

If  there  is  in  fact  a  right  to  execution,  or  rather  to 
an  order  of  court  directing  au  alias  to  issue,  but  it  is- 
sues without  such  order,  it  has  been  held  not  to  be 
void.  If  it  is  a  writ  purporting  to  authorize  the  arrest 
and  imprisonment  of  the  debtor,  it  is  a  sufficient  justi- 
fication to  the  officer  who  takes  him  in  execution,  and 
his  "remedy  is  not  by  habeas  corpus,  but  by  some 
proper  proceeding  in  the  court  from  which  the  execu- 
tion issued,  to  recall  it  or  set  it  aside.''  ^''  ^ 

§  56  a-  Renewals  instead  of  Alias  Writs.— In  some  in- 
stances, without  statutory  authority  therefor,  clerks 
and  other  officers  authorized  to  issue  alias  writs  of 
execution  have,  instead  of  doing  so,  sought  to  accom- 
plish substantially  the  same  object  by  some  indorse- 
ment upon,  or  alteration  in,  a  pre-existing  writ,  as  by 
changing  its  date  or  by  writing  thereon  some  state- 
ment or  indorsenu'ut  intended  to  show  tliat  it  was  to 
continue  in  force.  In  the  absence  of  any  statute  ex- 
pressly authoriziug  it,  any  act  of  this  character  is  un- 
doubtedly irregular;***'  it  is  not,  however,  necessarily 

85a  White  v.   Slaloy.  21   Fla.  390. 
sibMoMannmau,  Petitioner.  10  K.  T.  36l. 

S6  Calhouu  County  v.  Burcli.  27  111.  446;  Mills  v.  Lombard,  32  Minn. 
2D9;  Love  v.  Gates.  2  Ired.   14. 


§  56a     •  ISSUING  ALIAS  AND  PLUKIES  WRITS.  248 

void.  Where  the  attempted  renewal  is  by  striking  out 
the  date  irregularlY  written  in  the  writ,  and  inserting  a 
later  one,  as  the  result  of  such  a  change  it  would  not 
necessarily  appear  from  the  face  of  the  writ  that  it  had 
been  previously  issued  or  was  otherwise  irregular,  and 
therefore  it  would  necessarily  i)rotect  an  ofhcer  in  exe- 
cuting its  commands  and  a  stranger  in  purchasing 
property  levied  upon  and  sold  thereunder.**''  In  North 
Carolina,  however,  a  writ  attempted  to  be  renewed  by 
altering  its  date  has  been  adjudged  absolutely  void.**''  * 
In  Connecticut,  on  the  other  hand,  this  mode  of  renew- 
ing writs  is  not  improper.  The  practice  in  that  state  of 
renewing  executions  by  changing  their  dates  is  said  to 
have  been  sanctioned  by  immemorial  usage.^® 

In  many  of  the  states  statutes  have  been  enacted 
specially  authorizing  the  renewal  of  writs.  Where 
such  statutes  are  in  force  it  would  seem  that  the  issu- 
ing of  an  alias  writ  can  rarely  or  never  be  necessary  in 
cases  falling  within  the  statute,  and  that,  in  lieu  of  is- 
suing these  writs,  the  plaintiff  may  i^rocure  such  re- 
newals of  the  original  writ  as  may  seem  necessary.  In 
Iowa,  an  execution,  if  not  satisfied  when  returned,  may 
be  renewed  from  time  to  time  by  an  indorsement  there- 
on to  that  effect,  signed  by  the  justice  and  dated  as  of 
the  date  of  such  renewal.  The  indorsement  must  state 
the  amount  paid  thereon,  and  continues  the  execution 
in  force  for  thirty  days  from  the  date  of  the  renewal.**^ 
Statutes  of  very  similar  import  exist  in  some  of  the 

87  Mills  V.  Lombard,  32  Minn.  259;  Faris  v.  State,  3  Oh.  St.  159; 
Sawyer  v.  Doane,  19  Vt.  598. 

87a  Love  v.  Gates,  2  Ired.  14. 

88  Roberts  v.  Church,  17  Conn.  142. 

89  Code  of  Iowa,  ed.  1897,  sees.  4542,  4543.  '' 


1>49  LSSUIX!;  ALIAS  AND  PLUllIES  WRITS.  §  56a 

other  stales,""  and,  where  they  exist,  it  is  sullicieut 
that  the  proueediiigs  takeu  or  the  iiKhjrseiueiits  made 
for  the  i»urpose  of  renewing  the  writ  be  in  substautial 
conforiuily  with  the  statute,  and  they  will  be  held  to 
be  of  such  coiiforniity  from  any  memorandum  or  en- 
dorsement from  whieh  it  appears  that  the  writ  is  to  be 
coiitiuued  in  force."*  The  direction  requiring  the  sign- 
inn'  of  tlic  endorsement  is  generally  regarded  as  manda- 
tory, and,  therefore,  if  it  be  not  signed,  the  writ  has 
not  been  renewed."^  In  South  Carolina,  a  proceeding 
is  prescribed  which  purports  to  authorize  the  renewal 
of  writs  of  execution.  It  requires  a  summons  to  be 
served  upon  the  judgment  debtor,  his  heirs,  executors 
or  administrators,  requiring  them  to  show  cause,  if  any 
he  or  they  may  have,  why  the  writ  should  not  be  re- 
newed. The  written  consent  of  the  judgment  debtor 
dispenses,  however,  with  the  necessity  of  serving  sum- 
mons upon  him.'*^  This  proceeding  is,  rather,  one  for 
the  revival  of  the  judgment  than  for  the  renewal  of  an 
execution,  and  after  the  judgment  is  thus  revived,  it 
appears  that  a  new  execution  is  authorized  rather  than 
an  old  execution  renewed.*^* 

A  writ  of  execution,  whether  it  be  an  original  or  an 
alias,  may  be  lost  or  destroyed.  In  either  event,  a  pro- 
ceeding may  be  taken  in  the  court  whence  it  issued  to 
re-establish  it,  and  to  thus  restore  the  record  evidence 

80  BigaJow  V.  Barro,  30  Mich.  1;  Howell's  St.,  ed.  1882,  see.  G975; 
State  V.  Boettiger,  3'J  Mo.  App.  US4:  Decker  v.  Lidwell,  3  Mo.  App. 
58G:  Winne  v.  Iloughtallng.  K4  Hun.  IGG. 

91  Wiokbam  v.  Miller,  12  Johns.  320;  Chapman  v.  Fuller.  7  Barb. 
70;  Pr(>ston  v.  Leavitt.  G  W'end.  GG3;  Wilson  v.  Gale.  4  Wend.  G33. 

92  Barhydt  v.  Valk,  12  Wend.  145,  27  Am.  Dec.  124;  Ostrani'er  v, 
Walter.  2  Hill,  332. 

•3  Carrier  v.  Thompson,  11  S.  C.  79. 

»*  McNair  v.  Ingraham,  21  S.  C.  7G:  Sullivan  v.  Shell.  .3G  S.  C.  578, 
81  Am.  St.  Rep.  894;  McLaurin  v.  Kelly.  40  S.  C.  4SG. 


§  5t5a  ISSUING  ALIAS  AND  PLURIES  WRITS.  25^ 

of  its  existence/^'*  In  New  York  and  Pennsylvania,  the 
practice  pursued  has  been  to  take  a  rule  that  the  clerk 
or  prothonotary  issue  a  new  or  duplicate  fieri  facias 
nunc  pro  tunc.^  Such  a  proceeding  does  not  result  in 
the  issuing  of  an  alias  or  pluries  writ;  it  merely  sup- 
plies competent  evidence  of  the  issuing  and  contents  of 
a  pre-existing  writ,  whether  an  original,  an  alias,  or  a 
pluries. 

95  Tonont  v.  Suiter.  67  Ga.  32;  Wallis  v.  Smith,  19  C.a.  8;  Free- 
man V.  Coleman,  88  Ga.  421;  Miluer  v.  Akin,  58  Ga.  S")."). 

»«  White  V.  Lovejoy,  3  Johns.  448;  Chichester  v.  Crane,  3  Cow.  39^ 
15  Am.  Deo.  238;  Clark  v.  Field,  1  Miles.  224. 


251  THE  W  KIT  Uk'  VENl^lTIOM  EXPONAS.  f  67 


CHAPTER  V. 

THE  WRIT  OF  VENDITIONI  EXPONAS. 

{  57.  Definition  and  object. 

§  58.  Gives  no  authority. 

§  59.  May  issue  witli  a  fieri  facias  clause. 

§  60.  Effect  of  sale  under. 

§  CI.  Collatoral  attack  upon  and  ameuduient  of. 

I  62.  To  whom  directed. 

§  57.  Definition  of  Object. — The  venditioni  exponas 
is  sometimes  spoken  of  as  a  brancli  of  the  writ  of  fieri 
facias.*  It  is  issued  when  an  original,  alias,  or  pluries 
writ  of  fieri  facias  is  returned  with  an  indorsement, 
showing  that  the  oHicer  has  levied  on  property,  and 
has  the  same  in  his  hands  unsold.  In  all  such  cases, 
the  plaintiff  may  wish  to  compel  a  sale  of  the  property 
levied,  in  order  that  he  may  have  it  applied  to  the 
satisfaction  of  his  debt,  and  may,  in  case  it  does  not 
produce  a  complete  satisfaction,  have  execution  for 
the  sum  remaining  unpaid.  Without  this  writ,  the  plain- 
tiff's remedy  against  the  officer  would  be  inadequate; 
with  the  aid  of  the  writ,  such  rcnuHly  is  complete. 
The  officer  is  bound  to  return  tlie  writ  of  fieri  facias  by 
the  return  day  thereof,  and  is  liable  to  suit  if  he  does 
not  return  it,  citlu'r  executed  or  with  a  sufficient  excuse 
for  not  executing  it.  In  case  he  returns  that  he  has 
made  a  levy,  and  gives  a  sufficient  excuse  for  not  hav- 
ing sold  the  property  levied,  then  the  pbuiitilT  may,  by 
procuring  a  writ  of  venditioni  exponas,  compel  him  to 

1  Hughes  V.  Rees,  7  Dowl.r.  C.  50,  4  Mees.  &  W.  46S,  1  H.  &  H. 
847. 


§  57  THE  WRIT  OF  VENDITIONI  EXPONAS.  252 

proceed  \\illi  the  sale.  This  writ  is,  therefore,  prop- 
erly defined  as  the  writ  which  compels  au  officer  to 
proceed  with  the  sale  of  property  levied  upon  under  a 
fieri  facias.- 

The  right  to  issue  this  writ  is  necessarily  suspended 
or  destroyed  by  anything  which  makes  the  execution 
of  the  judgment  improper  at  that  time.  Hence  its  is- 
suing is  irregular  if  there  has  been  some  motion  or 
proceeding  operating  to  stay  the  execution.^  If  by  the 
statutes  in  force  in  a  state  where  the  writ  issues,  some 
proceeding  is  required  without  which  the  iDlaintiff  is 
not  entitled  to  it,  any  issuing,  in  the  absence  of  such 
proceeding,  is  irregular  and  perhaps  void."*  Thus  in 
Pennsylvania,  the  sale  of  a  life  estate  in  real  property 
may  be  authorized  by  the  issuing  of  a  venditioni  ex- 
ponas, but  the  statute  declares  that  this  writ  shall  not 
issue  for  this  purpose  unless  by  direction  of  the  proper 
court  and  on  the  application  of  a  lien  creditor,  of  which 
the  tenant  for  life  shall  have  notice  for  at  least  ten 
days.  A  writ  issued  without  an  order  of  court  is,  in 
that  state,  held  to  be  absolutely  void,  and  therefore  in- 
capable of  supporting  a  sale  made  in  pursuance  of  its 
directions.^  In  some  of  the  states,  if  a  levy  has  been 
made  upon  real  property,  after  which  the  defendant 
dies,  his  heirs  are  required  to  be  brought  before  the 
court  as  a  condition  precedent  to  any  further  proceed- 
ings against  such  real  estate,  and  to  this  end  it  is  nec- 
essary   to    prosecute   a   scire    facias    against   them. 

2  Cameron  v.  Reynolrls.  Cowt).  4fM5:  Welch  v.  Sullivan.  8  Cal.  105; 
Holmes  V.  Mclncloe,  20  "Wis.  657:  Bellinj^all  v.  Duncan.  3  Gilm.  477; 
Tvockiidse  v.  Baldwin,  20  Tex.  308,  70  Am.  Dec.  385;  Fiisch  v.  Mil- 
ler, 5  Pa.  St.  310. 

?.  Windsor  v.  Tiliotson,  1.35  Pa.  St.  208. 

*  T>pfeuntun  v.  Veronneau,  22  Can.  S.  C.  203 

sKlintz  V.  Lon?r.  30  Pa.  St.  501;  Snyder  v.  Christ,  30  Pa.  St.  499: 
Kunselman  v.  Stine,  183  Pa.  St.  h 


253  THE  WRIT  OF  VENDITIONI  EXPONAS.  §  58 

Where  this  xjriictice  prevails,  it  has  been  held  that  ihe 
issuing-  of  the  writ,  in  the  absence  of  a  scire  tacias 
against  the  heiis,  is  a  millity."  Because  a  writ  issued 
under  such  circumstances  is  void,  its  issuing  by  the 
clerk  has  been  held  to  create  no  liability  against  him, 
though  by  it  a  sak'  of  the  property  of  the  defendant 
may  have  taken  place  and  he  may  have  been  subjected 
to  the  inconvenience  and  expense  of  litigation  against 
him  based  upon  such  writ  and  saleJ 

§  58.  Gave  the  Officer  No  Authority.— The  venditioni 
exi)onas  was  so  frequently  issued  as  to  create  the  im- 
pression that  it  was  a  writ  of  authorization  as  well  as 
of  compulsion,  and  was  necessary  to  enable  the  oflicer 
to  proceed  with  the  sale.  Such  was  not  the  fact;  it 
gave  the  officer  no  authority  not  previously  possessed 
by  hira.**  Kotwithstanding  the  return  of  the  fieri 
facias,  he  could  sell  the  property  levied  on  as  well  with- 
out as  with  a  venditioni  exponas.  If  he  was  willing  to 
proceed,  the  issue  of  this  writ  was  a  clear  superfluity.'** 
One  of  the  natural  consequences  of  the  rule  that  this 
writ  gives  no  additional  authority,  is  that  a  sale  can- 
not be  authorized  by  it  whicli  the  original  writ  could 
not  have  authorized.  If  the  property  levied  upon  was 
not  that  of  the  judgment  debtor,  a  writ  of  venditioni 
exponas,  commanding  him  to  sell  it,  cannot  protect  the 

6  Sims  V.  Eslava.  74  Ala.  594;  Samuel  v.  Zacbery,  4  Ired.  377; 
Barficld  v.  Barfield,  113  N.  C.  2:{0. 

7  Eslava  v.  Jones,  83  Ala.  139,  3  Am.  St.  Rep.  699. 
sManahan  v.  Sammon.  3  Md.  463;  Buehler  v.  Rogers,  G8  Pa.  St. 

9;  Toung  v.  Smith,  23  Tex.  .')98,  76  Am.  Dec.  81;  Smith  v.  Spencer, 
3  Ired.  256;  Cummins  v.  Webb.  4  Pike,  229;  Borden  v.  Tillman,  39 
Tex.  262;  Ilastinirs  v.  Bryant.  11.5  111.  75. 

»  Ritchie  v.  Iliir.einbotham,  2G  Ivan.  645;  Ayre  v.  Aden,  Oro.  .Tao. 
73;  Irvin  v.  Pickott.  3  Bibb.  ?,Ar,:  Clerk  v.  Withers.  I.d.  Raym.  1073; 
Colyer  v.  Iliggins,  1  Duvall.  7;  Keith  v.  Wilson,  3  Met.  (Ky.)  204. 


t  68  THE  WRIT  OF  VENDITIONI  EXPONAS.  254 

officer  from  an  action  against  him  by  the  true  owner  of 
the  property  who  was  not  a  party  to  the  judgment.^" 
Where  a  levy  had  been  made,  and  thereafter  a  super- 
sedeas issued,  it  was  held  that  the  levy,  having  been 
rommenced,  gave  the  ollicer  a  special  property  which 
the  supersedeas  did  not  affect,  and  that  he  could, 
therefore,  by  a  venditioni  exponas,  be  compelled  to 
proceed  with  the  sale.^^  If  the  property  mentioned  in 
the  venditioni  exponas  was  sold  without  satisfying  the 
judgment,  the  proper  remedy  was  to  procure  an  alias 
tieri  facias  for  the  balance  due.^^ 

From  the  well-established  proposition  that  a  ven- 
ditioni exponas  confers  no  authority  upon  an  officer, 
and  is,  in  its  effect,  confined  to  inciting,  or  compelling, 
him  to  pursue  an  authority  otherwise  possessed,  it  fol- 
lows that  in  determining  the  validity  of  an  execution 
sale,  the  venditioni  exponas  may  be  disregarded,  for  it 
can  neither  detract  from  a  sale  otherwise  valid,  nor 
ii'iye  force  to  a  sale  otherwise  void.  The  power  of  the 
<jfficer  depends  solely  on  the  prior  writ  and  the  pro- 
ceedings thereunder. ^^  Hence,  if  acting  under  this 
writ  an  officer  sells  property  in  a  case  where  no  fieri 
facias  had  issued,**  orwhere  the  property  sold  had  not 
l>een  levied  upon,**^  or  where  the  judgment  had  been 
satisfied  or  merged  into  another  judgment,*^  such  sale 
is  clearly  void:  for  in  neither  of  these  instances  is  there 
any  power  to  subject  the  property  to  a  compulsory  sale. 

10  Burgin  v.  Raplee,  100  Ala.  433. 

11  Charter  v.  Peeter,  Cro.  Ellz.  597;  Milton  v.  Eldrington,  1  Dyer, 
98  b;  Overton  v.  Perkins,  Mart.  &  Y.  367. 

12  Den  on  dem.  of  Smith  v.  Fore,  10  Ired.  37,  51  Am.  Dec.  376; 
<'h.'imbers  v.  Dollar.  29  U.  C.  Q.  B.  599. 

1  ••  Frink  v.  Roe.  70  Cal.  290. 

i^Iiurst  V.  I>iford.  11   TI(>isk.  622. 

I'Bf.rflen  v.  McBae.  46  Tex.  ?,96:  Wood  v.  Ancrnstine,  61  Mo.  46. 

5  6  Wright  V.  Yi-ll,  13  Ark.  503,  58  Am.  Dec.  336. 


255  THE  Willi  OF  VENDITIONI  EXE'ONAS.  §  58 

At  the  common  law,  this  w  rit  issurd  only  to  compel 
a  sale  of  i)ersoual  property,  for  the  very  obvious  reason 
that  the  policy  of  that  law  did  not  pi-nniL  the  divesting 
of  the  title  to  real  property  by  an  execution  sale.  In 
this  country  a  dilTerent  policy  prevails — one  under 
which  the  sale  of  realty  under  execution  is  regarded 
with  but  little  less  favor  than  that  of  personal  estate. 
Whenever  under  the  local  statutes,  a  levy  upou  real 
estate  is  sanctioned,  and  when  made  constitutes  a  cou- 
t  inning  lien  notwithstanding  the  return  of  the  execu- 
tion, the  property  so  levied  ujion  may,  after  the  return 
day  of  the  writ,  be  sold  under  a  venditioni  exponas.*'^ 
The  doubtful  question  is,  whether  lands  may  be  sold 
after  the  return  day  of  the  execution  in  the  absence  of 
this  writ.  In  the  case  of  personal  estate,  it  is  con- 
ceded that  the  officer  levying  the  writ  obtains  a  right  of 
possession  and  a  special  property  in  the  goods  seized, 
which  continue  after  the  return  day,  and  authorize  him 
to  sell  as  effectually  as  if  the  original  writ  remained  in 
full  force.  But  a  levy  upon  real  estate  gives  no  special 
property,  and  no  right  of  possession  to  the  officer  mak- 
ing the  levy,  and  hence  it  has  been  inferred  that,  after 
the  return  day  of  the  writ  under  which  the  levy  was 
made,  he  occupies  no  official  or  other  relation  toward 
such  property,  and  has  no  power  to  dispose  of  it,  and 
thereby  make  effectual  the  lien  created  by  the  levy. 
Where  this  view  prevails,  an  exception  exists  to  the 
general  rule  that  a  venditioni  exponas  confers  no  au- 
thority, and  it  is  then  necessary  after  the  return  day  of 
an  execution  that  this  writ  issue  to  empower  the  officer 

IT  liorden  v,  Tillman,  39  Tex.  262;  Locliridge  v.  Baldwin.  20  Tex. 
303,  70  Am.  Dec.  385;  Borden  v.  McRae,  46  Tex.  396.  It  lias,  how- 
ever, been  denied  that  a  venditioni  exponas  can  give  power  to  sell 
liinds  after  the  return  day:  Rogers  v.  Cawood,  1  Swan,  143,  55  Am. 
DiC.  729. 


§  53  THE  WRIT  OF  VENDITIONI  EXPONAS,  2:(> 

to  sell  real  estate  levied  upon  but  not  sold,  and  a  sale 
without  such  writ  is  void.^**  In  our  judj^ment,  the 
special  property  and  the  right  of  possession  vested  in 
an  officer  upon  the  levy  of  a  writ  upon  personal  prop- 
erty are  not  the  foundation  of  his  authority  to  sell,  but 
are  mere  incidents  of  that  authority  designed  to  make 
its  exercise  effectual.  His  authority  is  derived  from 
the  judgment,  the  writ  and  its  levy.  That  this  author- 
ity may  be  pursued  the  more  effectually,  the  officer  is 
vested  with  a  special  property  and  a  right  of  posses- 
sion, for  otherwise  the  chattels  seized  might  be  taken 
out  of  bis  possession  with  impunity,  and  their  applica- 
tion to  the  satisfaction  of  the  writ  delayed  or  wholly 
avoided.  The  authority"  to  sell  real  estate  may,  on  the 
other  hand,  be  prudently  and  effectively  exercised  with- 
out divesting  the  owner  of  possession,  or  conferring- 
any  special  property  on  the  levying  officer.  It  can 
neither  be  hidden,  nor  seized  and  removed  beyond  his 
bailiwick;  and  the  recording  of  the  levy  may  give 
notice  to  all  intending  purchasers  or  encumbrancers 
and  prevent  the  creation  of  any  new  rights  or  interests 
not  subordinate  to  the  levy.  By  the  levy,  a  lien  is 
created  whose  duration  is  not  limited  to  the  return  day 
of  the  writ,  and  from  this  it  must  necessarily  follow 
that  the  officer  has  authority,  notwithstanding  the 
passing  of  such  return  day,  to  make  his  levy  productive 
by  a  sale  of  the  realty  levied  upon;  and  this  authority 
is  not  dependent  on  the  issuing  of  a  venditioni  exponas, 
for  this  writ  does  nothing  more  than  to  compel  the  per- 
formance of  a  pre-existing  duty,*^ 

18  Hester  t.  Diiprey,  46  Tex.  027;  Mitchell  v.  Ireland,  54  Tex.  306; 
Bardon  v.  MoKiunie,  4  Hawks,  279,  15  Am.  Dec.  519;  Porter  v, 
Neelan,  4  Yeates,  108;  Smith  v.  Mnndy,  18  Ala.  185,  52  Am.  Dec. 
221;  Sheppard  v.  Rhea,  49  Ala.  125,  and  see  post,  §  106. 

19  Rose  V.  Inpn-am,  98  Ind.  276;  Knox  v.  Randall,  24  Minn.  479; 
Johnson  v.  Bemls,  7  Neb.  224;  Frink  v.  Roe,  70  Cal.  296;    Cox    v. 


257  THE  WKIT  OF  VENDITIONI  EXl  ONAS.  §§  5'.t,  CO 

§  59.  May  have  Fieri  Facias  Clause. — Tho  vonditioni 
exponas  could  be  issued  with  a  iii  ri  facias  clause.  It 
then  united  the  powers  of  the  two  writs,  compelling 
the  sale  of  the  property  under  levy,  and  authorizing 
the  seizure  and  sale  of  such  other  jaopeity  as  might  be 
necessary  to  satisfy  the  judgment.  But  if  the  fieri 
facias  clause  was  not  inserted  its  omission  could  not  be 
treated  as  a  clerical  error,  to  be  thereafter  cured  by 
amendment.  A  levy  and  sale,  w^here  there  is  no  fieri 
facias  clause,  are  therefore  entirely  unauthorized  and 
absolutely  void.'"  The  property  must  be  sold  as  re- 
quired by  the  venditioni  before  any  lawful  seizure  can 
be  made  of  other  property  under  the  fieri  facias 
clause.^^ 

§  60.  The  Effect  of  a  Sale  Under  a  Venditioni  Ex- 
ponas is  the  same  as  though  the  sale  had  been  made 
under  the  original  writ  before  the  return  day.  The 
purchaser  can  obtain  no  better  nor  greater  title  than 
would  have  passed  under  the  original  writ;"  but,  on 
the  other  hand,  the  lien  of  the  original  writ  and  of  the 
levy  thereunder  continue  under  the  venditioni  exponas, 
and  confer  as  ample  a  title  as  could  have  been  trans- 
ferred under  and  by  virtue  of  such  original  liens.^^ 

Joiner,  4  Bibb,  94;  Stein  y.  Obarabless,  18  Iowa.  474:  Cultcrficld  v. 
Walsb,  21  Iowa.  101;  Pliillips  v.  Dana,  3  Scam.  557;  Moreland  v. 
Bowlius,  3  Gill,  .500;  Rfmin,u;toii  v.  Liutbicum,  14  Pet.  84;  Bnsey  v. 
Tuck,  47  Md.  171;  see  post.  §  lOG. 

20  Maupin  v.  Emmons.  47  Mo.  304;  Qiiinn  v.  Wiswall,  7  Ala.  645; 
Zugr  V.  Lau?:hlin.  23  Ind.  170;  Lee  v.  Howes.  30  U.  C.  Q.  B.  292. 

21  Canaday  v.  Nuttall,  2  Ired.  Eq.  2G5;  Dunn  v.  Nicbols,  G3  N.  C. 
107. 

22  Badlmm  v.  Cox.  11  Ired.  4.5G;  Bursin  v.  R.aplo<>.  100  Ala.  433. 

23  Yarborouiib  v.  State  Bank.  2  Dev.  23;  Zusr  v.  L.uii^bliii.  2:?  Ind. 
170;  Doe  v.  Ilayo.s.  4  Ind.  117;  Taylor  v.  Mumford,  3  Humpb.  66; 
Hicks  V.  ElUs,  Go  Mo.  177. 

Vol.  I.— 17 


§§  61,  62  THE  WRIT  OF  VENDITIONI  EXPONAS.  258 

§  61.  Collateral  Attack  Upon,  and  Amendment  of.— A 
venditioni  exponas  is  as  little  liable  to  collateral  at- 
tack, and  as  much  subject  to  amendment,  as  the  orig- 
inal writ.  Thus  where  it  was  issued  under  the  seal  of 
the  court,  but  without  the  clerk's  signature,  this 
omission  was  regarded  as  a  clerical  error,  proper  foi- 
amendment,  but  not  destroying  the  validity  of  the 
writ.^*  So  where  the  writ  omitted  some  of  the  articles 
which  were  sold  under  it,  it  was  amended  after  forty 
years  to  sustain  the  sale,  it  appearing  that  all  the 
articles  were  levied  on  under  the  fieri  facias.^^  In  such 
a  case,  there  is  no  need  of  an  amendment;  for,  as  the 
officer  has  authority  to  sell  without  any  venditioni  ex- 
ponas, he  cannot  be  said  to  have  less  authority  because 
of  informalities  in  the  writ,  whether  of  form  or  sub- 
stance.^^ 

§  62.  To  Whom  Directed.— This  writ  is  usually 
directed  to  the  officer  who  made  the  levy,  whether  he 
continues  in  office  or  not.  It  may,  however,  be  di- 
rected to  and  executed  by  his  successor  in  office,  if  the 
levy  be  upon  real  estate;  ^'^  but  the  authorities  make 
a  distinction  between  cases  where  the  venditioni  is 
issued  for  the  sale  of  personal  property,  and  where  it  is 
issued  for  the  sale  of  land.  In  cases  of  the  former 
class,  the  venditioni  must  go  to  the  officer  who  made 
the  seizure;  for  by  the  seizure  he  acquired  a  special 
property  in  the  chattels,  and  a  right  to  their  posses- 

«4McCormack  v.  Meason,  1  Serg.  &  R.  92. 

25  De  Haas  v.  Bunn,  2  Pa,  St.  335,  44  Am.  Dec.  201.  See,  also. 
Chambers  v.  Dollar,  29  U.  C.  Q.  B.  599. 

28  See  §  58. 

sTBellingall  v.  Dnnpan,  3  Gilm.  477;  Siimnor  v.  Moore.  2  Mcl>pan, 
59:  Holmes  v.  Mclndoe,  20  Wis.  657;  Tarkiugton  v.  Alexander,  2 
Dev.  &  B.  87. 


259  THE  WRIT  OF  VENDliiONi  EXl'ONAS.  §  62 

Bion.^  If  the  courts  will  but  cunsistently  apply  the 
well-established  rule  that  a  VL*u(liti(Hii  exp(jua.s  is  not  a 
writ  of  authorizatiou,  but  of  compulsiou  merely;  that 
the  object  of  its  issue  is  not  to  create  an  authority,  but 
to  arouse  to  action  one  already  existing,  then  the  qu<'S- 
tion  whether  it  shall  issue  to  the  sheritt"  in  ollice,  or 
to  his  predecessor,  by  whom  the  levy  was  made,  is  of 
insignificant  import.  The  important  question  is,  Wiiat 
acts  may  a  sheritf  or  other  officer  lawfully  and  effectu- 
ally do,  after  the  expiration  of  his  term  of  ollice?  for 
such  acts  may,  we  think,  be  done  without  as  well  as 
with  the  writ  of  venditioni  exponas.  The  general  rule 
is,  that  when  an  oflQcer  enters  upon  the  execution  of  a 
writ,  and  at  all  events  when  he  has  proceeded  so  far  as 
to  make  a  valid  levy  thereunder,  he  may,  notwith- 
standing the  expiration  of  his  official  term,  complete 
the  execution  of  the  process,  and  do  every  act  necessary 
to  completely  appropriate  to  the  satisfaction  of  the 
writ  the  property  so  levied  upon,  ihcluding,  in  the  event 
of  a  sale,  the  execution  of  such  mmiiments  of  title  as 
may  be  required  to  divest  the  title  of  the  judgment 
debtor  and  vest  it  in  the  purchaser,  at  the  execution 
sale.  For  all  these  purposes,  he  may  be  considered  as 
if  still  in  office.  The  authority  of  his  deputies  is  con- 
tinued, unless  revoked  by  him,  and  they  may  perform 
acts  and  execute  writings  in  his  name,  with  like  effect 
as  if  he  remained  in  office.^***  If  the  levy  w'as  upon 
personal  estate,  there  was  never  any  question  that  the 
sale  might,  and  indeed  must,  be  made  by  the  officer 

28Busey  v.  Tuck,  47  Md.  171;  Clark  v.  Sawyer,  48  Cal.  133;  Purl 
V.  Duval,  6  Har.  &  J.  69.  9  Am.  Dec.  490. 

*»  Tyree  v.  Wilson,  9  Gratt.  59,  58  Am.  Dec.  213;  Lofland  v.  Ew- 
Ing.  5  Litt.  42,  15  Am  Dec.  41;  .Tackson  v.  Collins,  3  Cow.  89;  Bal- 
lard V.  Thomas,  19  Gratt.  24;  Tuttle  v.  Jackson.  6  Wond.  210;  Mills 
V.  Tukoy,  22  Oal.  373,  S3  Am.  Doe.  74;  Hunt  v.  Swayze,  55  N.  J.  L. 
33;  Holmes  v.  Crooks,  70  X.  W.  1073  (Xeb.) 


§  62  THE  WRIT  OF  VENDITIONI  EXPONAS.  2G(> 

who  levied  the  writ,  though  in  the  meantime  he  had 
ceased  to  hold  office.^"  "It  seems  to  be  a  well-settie<l 
rule  of  law,  a  rule  of  the  common  law,  recognized  and 
confirmed  by  statute,  that  when  an  executive  officer 
has  begun  a  service,  or  commenced  the  performance  of 
a  duty,  and  thereby  incurred  a  re.si^onsibility,  he  has 
the  authority,  and  indeed  is  bound,  to  go  on  and  com- 
plete it,  although  his  general  authority,  as  such  officer, 
is  superseded  by  his  removal  or  his  derivative  author- 
ity terminated  by  the  determination  of  the  office  of  his 
principal.  His  authority  attaches  by  the  commence- 
ment of  the  service,  and  will  be  superseded  only  when 
it  is  completed,  whether  it  be  a  longer  or  a  shorter 
time."  ^1 

The  levy  of  an  execution  upon  real  estate  does  not, 
as  in  the  case  of  its  levy  upon  personal  property,  vest 
in  the  officer  any  special  property,  or  right  of  posses- 
sion; hence  it  has  been  decided  that,  on  the  termina- 
tion of  his  official  term,  he  could  no  longer  sell  such 
real  estate,''^  though  if  the  sale  had  taken  place  during 
such  term,  we  believe  no  doubt  has  ever  been  expressed 
that  he  could,  after  the  expiration  of  the  term,  make 
his  return  upon  the  writ,  or  execute  any  conveyance  or 
other  evidence  of  title,  based  upon  the  sale,^*  or  re- 
ceive from  the  judgment  debtor,  or  other  person  enti- 
tled to  redeem,  the  moneys  required  to  make  a  valid 

30  Clerk  v.  Withers,  1  Salk.  322,  6  Mod.  290;  Doe  v.  DonstoD,  1 
Barn.  &  Aid.  230;  Sauvinet  v.  Maxwell,  26  La.  Ann.  280;  People  v. 
Boring,  8  Cal.  400;  State  v.  Iloberts.  7  Halst.  114,  21  Am.  Dec.  02; 
Newman  v.  Beokwith,  01  N.  Y.  20.".;  Clark  v.  Pratt.  55  ^Me.  .540; 
Tukeyv.  Smith,  18  Me.  12.".,  30  Am.  Dec.  704;  Loavitt  v.  Smith,  7  Ala. 
175;  Bilby  v.  Hartman,  2!)  Mo.  Aj)!).  125. 

31  Lawrence  v.  Rice,  12  Met.  5-33. 

82  Leshey  v.  Gardner,  3  Watts.  &  S.  .314,  38  Am.  Dec.  764;  Bank 
of  Tennessee  v.  Beatty,  3  Sneed.  305.  05  Am.  Dec  .58. 

ssW'elsh  V.  .Toy.  13  Pick. 477;  Allen  v.  Trimble,  4  Bibb,  21,  7  Am. 
Dec.  720;  post,  §  327. 


1261  THE  WHIT  OF  VEXDITIUNI  EXPONAS.  §  62 

redemption  from  such  sale.^*  The  better  opinion  is, 
that  if  a  levy  be  made  upon  real  estate,  the  ollieer  levy- 
ing the  writ  may,  after  the  expiration  of  his  term,  com- 
plete the  execution  of  the  writ  by  a  sale  and  convey- 
ance; but  that  his  powers  in  this  rt  spi  ct  are  concurrent 
with  those  of  his  successor  in  oliice,  and,  therefore, ' 
that  the  venditioni  exponas  may  properly  be  issued  to 
and  executed  by  either.*'^  As  already  suggested,  it  is 
not  material,  at  least  for  the  purpose  of  sustaining  a 
title  based  upon  a  sale,  that  the  writ  be  directed  either 
to  the  officer  who  levied  it  or  his  successor  in  office, 
where  the  latter  possesses  authority  to  make  the  sale, 
and  hence  it  is  not  a  sufficient  objection  to  the  con- 
firmation of  a  sale  made  by  a  sheriff  that  he  did  not 
levy  the  writ,  and  that  the  sale  made  by  him  was  not 
directed  by  any  writ  of  venditioni  exponas.^** 

34  Elkin  V.  roople,  3  Scam.  207,  3G  Am.  Doc.  541;  Robertson  v. 
Dennis,  20  111.  315. 

35  Clark  V.  Sawyer,  48  Cal.  133;  Lofland  v.  Ewiug,  5  Litt.  42,  15 
Am.  Dec.  41;  Purl  v.  Duval.  5  Har.  &  J.  G9,  9  Am.  Dec.  490:  Jack- 
son V.  Collins,  3  Cow.  89;  Bellinscall  v.  Duncan.  3  Gilra.  480;  Holmes 
V.  Mclndoe.  20  Wis.  G89;  Sumnor  v.  Moore,  2  McLean,  59;  Fowble 
T.  Rayberg,  4  Ohio,  5G;  Kano  v.  McConn.  .55  Mo.  181. 

s«  Lewis  V.  Bartlett,  12  Wash.  212,  50  Am.  St.  Rep.  885. 


63  AMENDING  WRITS  OF  EXECUTION.  262 


CHAPTEK  VI. 

AMENDING  WEITS  OF  EXECUTIOIT. 

§  63.    Power  liberally  exercised. 

§  03  a.  Practice  to  be  pursued. 

§  64.    Power  extends  to  all  matters  of  form. 

§  65.    Amending  direction  to  the  ofticer. 

§  60.    Amending  omission  in  words  of  command. 

§  67.     Amending  to  conform  execution  to  judgment. 

§  68.    Amending  error  in  designating  the  return  day. 

§  69.    Amending  the  clause  of  attestation. 

§  70.    Amending  by  affixing  seal. 

§  71.     Time  within  which  amendment  may  be  made. 

§  71  a.  The  effect  of  amendments. 

§  71  b.  Effect  of  not  amending. 

§  72.     Persons  against  whom  amendments  may  be  made. 

§  63.  Power  of  is  Liberally  Exercised. — The  power 
of  courts  to  amend  executions  was,  until  a  compara- 
tively recent  date,  either  doubted  altogether,  or  af- 
firmed with  great  hesitation.  Thus  Mr.  Bingham,  in 
his  work  on  judgments  and  executions,  says  nothing 
upon  this  subject,  except  the  following:  "But  it  seems 
a  judicial  writ  may,  in  some  instances,  be  amended  by 
the  roll,  on  leave  from  the  court."  ^  No  subsequent 
author,  in  his  treatment  of  this  topic,  can  hope  to  excel 
Mr.  Bingham  in  brevity,  caution,  and  uncertainty. 
But  the  power  to  amend  executions,  and  the  limits 
within  which  it  should  be  exercised,  were  much  better 
established  and  understood  in  Mr.  Bingham's  time 
than  his  cautious  sentence  and  his  single  citation  of 
authority  indicate.  At  the  present  day.  the  power  to 
amend  executions  so  as  to  correct  clerical  misprisions 

1  Bingham  on  Judgments  and  Executions,  18G. 


2C3  AMEND1X(J  WillTS  OF  EXKCUTIOX.  §  «3 

is  universally  concoded,  and  frequently  invoked.  'In- 
deed, it  is  very  difficult  to  prescribe  limits  to  this 
salutary  power  possessed  by  the  courts,  of  permitting 
amendments  in  their  process,  whether  mesne  or  final. 
It  is  a  power  exercised  for  the  promotion  of  jiistice, 
with  no  i^arsimonious  hand;  yet,  where  its  allowance 
would  be  destructive  of  the  rights  of  innocent  third 
persons,  the  court  will  scan  well  the  grounds  on  which 
its  action  is  sought."  *  "When  w'e  advert  to  the  doc- 
trine of  amendments,  and  the  casts  which  have  been 
decided  on  that  subject,  it  will  be  praceived  that  the 
object  of  the  whole  system  is  to  provide  a  remedy  for 
casual  omissions,  or  negligence  of  different  officers  of 
the  court;  in  a  word,  to  enable  the  party  to  do  that 
w'hich  the  law  and  the  facts  in  the  case  would  have 
authorized  or  did  require  the  officers  to  have  done. 
The  decisions  on  this  subject  are  so  numerous,  and 
amendments  so  common,  and  I  may  almost  say  unlim- 
ited, that  the  difficulty  is  in  selecting  such  cases  as 
seem  most  directly  to  apply  to  the  subject  before  us."  ^ 
It  has  been  said  that  there  is  no  absolute  right  to  the 
amendment  of  a  writ,  and  that  whether  leave  to  amend 
should  be  granted  or  not  rests  in  the  discretion  of  the 
court  to  which  the  application  is  made,  and  hence  that 
its  action  will  not  be  reviewed  upon  appeal,  unless  it 
appears  to  have  treated  the  question  as  one  of  law, 
rather  than  of  discretion,  and  to  have  erred  in  its  inter- 
pretation of  the  law."*     It  is  perhaps  unfortunate  that 

2  Cawthoi-n  v.  Kniiiht,  11  Ala.  582;  McCoUuni  v.  Iliibbert,  13  Ala. 
284,  48  Am.  Dec.  5(5;  Meyer  v.  Rins.  1  H.  Black,  541;  Simon  v.  Gur- 
ney,  5  Taunt.  605;  Atkinson  v.  Newton,  2  Bos.  &  P.  33G;  Deloach  v. 
State  Bank,  27  Ala.  444.  Amendments  may  be  made  in  matters  of 
form,  but  not  of  substance.  Blanks  v.  Rector,  24  Ark.  490,  SS  Am. 
Dee.  780. 

3  Bou!  dt  anx  v.  Treasurers,  3  McCord,  144. 
•*  Hayford  v.  Everett,  OS  Me.  5U5. 


§G3  AMENDlN(i  WRITS  OF  EXECUTION.  264 

language  of  this  purport  should  ever  have  been  used; 
for  where  there  is  no  question  that  the  facts  of  two 
cases  are  identical,  it  ought  not  to  bo  possible  that 
diverse  judgments  should  be  sustained.  It  is  of  the 
utmost  imi)ortance,  both  to  purchus  rs  at  execution 
sales  and  to  defendants  whose  proi)erty  is  exposed 
thereto,  that  persons  learned  in  the  law  and  conversant 
with  the  facts  may  determine  therefrom  whether 
leave  will  be  granted  to  amend  a  writ  apparently 
amendable,  and  this  they  can  never  do  if  the  right  to 
amendment  is  subject  to  the  discretion  of  the  court,  if 
it  be  a  discretion  not  controlled  by  settled  rules  of  law. 
It  is,  however,  settled  tliat  leave  to  amend  will  not  be 
granted  where  it  is  not  in  furtherance  of  justice.  A 
sale  made  under  the  writ  may  be  for  an  inadequate 
price,  and  this  fact  ma}'  probably  be  due  to  the  inper- 
fect  character  of  the  writ.  If  so,  tlie  jirinciples  of  nat- 
ural justice  dictate  the  vacating  of  the  sale  rather  than 
supporting  and  making  it  impregnable  by  an  amend- 
ment of  the  writ,  and  the  action  of  the  court  in  amend- 
ing the  writ  and  refusing  to  quash  the  sale  may  be  re- 
viewed on  appeal.^ 

The  theory  upon  which  leave  to  amend  writs  is 
sought  and  granted  is,  that  the  clerk  of  the  court  has 
disregarded  the  law  and  the  presumed  command  of 
the  court  by  issuing  a  writ  which  does  not  conform  to 
the  judgment,  or  is  defective  in  some  otlier  respect. 
The  court,  in  directing  him  to  amend  it,  but  requires 
liim  to  perform  his  original  duty.  It  has  hence  been 
held  that  the  power  to  amend  applies  only  to  writs  is- 
sued by  clerks  of  courts,  or  out  of  courts  having  clerks, 
and  therefore  that  a  justice  of  the  peace,  especially  if 
the  writ  has  been  executed,  has  no  power  to  amend 

«  Flint  V.  Phipps,  20  Or.  3-10,  23  Am.  St.  Rep.  124. 


■265  AMENDING  WRITS  OF  EXK*  UTION.  §  63a 

it*  On  the  other  hand,  it  is  insisted  that  the  power 
is  inherent  in  all  courts  having  power  to  issue  writs, 
including  those  of  justices  of  the  peace.''  If  the  mak- 
ing of  an  amendment  is  necessarily  an  exercise  of  the 
judicial  power,  it  must  be  restricted  to  judicial  officers. 
In  some  of  the  states,  however,  clerks  of  courts  are 
authorized  by  statute  to  amend  writs  in  so  far  as  to 
coiTect  mistakes  in  issuing  them.®  So  far  as  we 
know,  the  constitutionality  of  such  statutes  has  not 
been  questioned. 

§  63  a.  The  Practice  to  be  Pursued  in  Procuring  an 
Amendment  of  a  Writ  is  not  distinctly  disclosed  in  any 
of  the  cases  falling  vrithin  our  observation.  In  many  in- 
stances the  defects,  on  account  of  which  an  amendment 
is  sought,  are  so  clearly  merely  clerical  errors,  and  the 
case  is  so  free  from  doubt  respecting  the  writ  intruded 
to  be  issued,  that  proceedings  taken  thereundei-  must 
be  sustained,  whether  any  formal  amendment  is  ever 
made  or  not.  In  such  cases  the  practice  to  be  pursued 
in  procurin-g  an  amendment  cannot  be  material,  for, 
•conceding  leave  to  amend  to  have  been  improvidently 
granted,  or  disregarding  the  amendment  altogether, 
the  rights  of  the  plaintiff  and  of  all  ptTSous  claiming 
under  the  writ  are  still  j^rotected  and  secure.  If,  on 
the  other  hand,  the  amendment  sought  is  of  so  substan- 
tial a  character,  or  of  such  doubtful  propriety,  that 
the  rights  of  the  parties  may  be  affected  by  it,  or,  in- 
stead of  being  a  matter  of  course,  it  is  a  matter  upon 
which  reasonable  judges  may  diffi^r,  certainly  the  par- 
ties to  be  affected  by  it  should  be  brought  before  the 

«  Porter  v.  Ilaskell,  11  Me.  177;    Taaf  v.  Bentlej',  5    Wend.  276; 
Stevens  v.  Chouteau.  11  Mo.  382.  49  Am.  Deo.  92. 
T  Sllner  v.  Buttertield,  2  lud.  24. 
«  Smith  V.  Bell,  3U  S.  E.  6S4  (Ga);  Gross  v.  Mims,  63  Ga.  563- 


§  63a  AMENDING  WRITS  OF  EXECUTION.  26G 

court  by  some  notice  warning  them  of  tlie  proposed 
action  and  giving  them  an  opportunity  to  resist  it.'*^ 
In  the  absence  of  such  notice,  they  should  not  be  held 
bound  by  the  order  granting  leave  to  amend,  nor  by  the 
amendment  made  in  pursuance  of  it.^*^  We  assume^ 
therefore,  that  the  proper  practice  of  a  person  desiring 
to  obtain  leave  to  amend  a  writ  in  any  substantial 
particular,  and  where  leave  does  not  follow  as  a  mat- 
ter of  course  from  a  mere  inspection  of  the  record, 
is  to  give  written  notice  to  all  persons  apparently  ta 
be  prejudiced  by  the  amendment,  that  an  application 
will  be  made  to  the  court  at  a  time  stated  for  leave  to 
amend  the  writ  in  a  manner  designated  in  such  notice. 
If,  however,  a  motion  is  made  to  quash  the  writ  or 
levy,  and  the  parties  in  interest  are  thereby  brought 
before  the  court,  the  plaintiff  or  other  person  inter- 
ested in  the  writ  may  meet  this  motion  by  a  counter- 
motion  for  leave  to  amend  and  to  thereby  free  the  writ 
from  the  irregularity  complained  of,  anil  this  counter- 
motion  need  not  be  preceded  by  any  formal  written 
notice. 

Sometimes  leave  to  amend  has  been  granted  in  a 
case  other  than  that  in  which  the  writ  issued,  as  where 
the  objection  to  the  writ  was  interposed  in  another 
action  and  the  court  engaged  in  the  trial  thereof  at 
once  ordered  an  amendment  to  be  made,  so  as  to  re- 
move the  objection.  The  leave  thus  given  to  amend 
may  be  sustained  where  both  a'ctions  are  in  the  same 
court,  and  also  when  no  harm  could  have  resulted  from 
the  amendment,  for  the  reason  that,  from  an  inspec- 
tion of  the  record,  it  is  clear  that  the  order  is  a  correct 

»  Byboe  v.  Ashby,  2  Gilm.  451,  43  Am.  Dec.  47;  Simpson  v.  Simp- 
son, 64  N.  C.  427. 
10  Morris  V.  Ballcliam,  75  Tex.  Ill,  IG  Am.  St.  Rep.  874. 


267  AMENDING  WRITS  OF  EXi:CUTION.  §  C4 

one,  for  in  lliut  event  the   writ  might   be  treated  as 
amended,  whether  the  record  is  in  that  court  or  not."  ** 

§  64.    Amendments  for  Matters  of  Form.— When  we 
come  to  examine  the  different  decisions  in  reference 
to  amendin«i'  executions,  we  tiiid  them  so  various  and 
comprehensive  as  to  fully  justify  the  remarks  quoted 
in  the  preceding  section.     These  decisions,  though  not 
perfectly  harmonious,  are  as  nearly  so  as,  from  our 
previous  knowledge  of  judicial  doubts  and  dissensions, 
we  could  expect  to  find  them.     In  the  chapter  on  the 
form  of  an  original    execution    we  have    stated    that 
every  execution  usually  embraces  six  different  parts. 
We  think  that  each  of  these  parts  may  be  amended, 
at  any  time,  where  the  amendment  proper  to  be  made 
can  be  ascertained,  either   from  reference  to  the  rec- 
ord, or  to  the  existing  law  prescribing  the  form  and 
contents  of   the  writ.     Hence,  if   the  w^rit    issues    in 
the  name  of  the  territory  of  C,  instead  of  in  the  name 
of  the  state,^'  or  in  the  case  of  an  execution   against 
the  person  of   the  defendant  misnames   the    town  in 
which  the  county  jail  is  situated,^^  these  are  amend- 
able defects  which  do  not  destroy  the  efficiency  of  the 
writ. 

"W^hile  an  execution  should  follow  and  conform  to 
the  judgment,  it  is  clear  that  an  amendment  may  be 
allowed  if  the  execution  can  be  so  identified  with  the 
judgment  and  the  record  on  which  the  judgment  is 
founded  that  the  court  can  find  data  by  which  to  make 
the  amendment."  ^^  "The  general  principle  is.  that 
when  the  judgment  is  recovered  in  a  court  having  juris- 

11  Dewey  v.  Peeler.  IGl  Mass.  1.35,  42  Am.  St.  Rep.  309. 

12  Carnahan  v.  Pell.  4  Ck)lo.  190. 

13  Avery  v.  Lewis,  10  Vt.  .^''.2.  3.3  Am.  Deo.  203. 

14  Dewey  v.  Peeler,  IGl  Mass.  loo,  42  Am.  St.  Rep.  399. 


§  65  AMENDING  WRITS  OF  EXECUTION.  268 

diction,  and  the  execution  is  issued  by  the  proper  offi- 
cer, irregularities  eitlier  in  the  mode  of  issuing  it  or 
in  the  document  itself  do  not  make  it  void;  and  that 
it  may  be  dealt  with  by  the  court  upon  motion  of  either 
})arty,  and  amended  or  annulled  as  justice  may  require, 
and  that  service  of  it,  if  it  is  not  annulled,  or  service 
restrained  or  suspended,  is  not  invalid."  ^^ 

It  has  been  said,  and  perhaps  trulj^,  that  a  void  writ 
cannot  be  amended.^"  The  declaration  of  this  general 
principle  is  of  no  greater  aid  than  is  that  other  declara- 
tion, to  be  found  in  so  many  of  the  decisions,  that  an 
amendable  writ  is  not  void.  We  are  still  left  with- 
out any  test  to  determine  what  writs  are  void  and 
what  voidable.  This  question  cannot  be  answered  in 
a  single  sentence  or  section,  and  the  reader  must  be 
left  to  determine  it  from  a  vast  variety  of  decisions 
involving  assaults  upon  writs  and  proceedings  there- 
under from  widely  divergent  points  of  attack,  attended 
by  an  infinite  variety  of  circumstances. 

§  65.  Amending  the  Direction  to  the  Officer.— Where 
a  writ  is  directed  to  an  improper  officer,  but  executed 
by  the  proper  officer,  the  error  in  the  direction  does 
not  vitiate  the  writ,  and  may  be  cured  by  amend- 
ments.^'^ Where  such  an  eiTor  had  been  committed, 
the  court  said:  ''This  is  a  judicial  writ,  and  the  erro- 
neous direction  is  a  mere  misprision  of  our  own  clerk. 
Judicial  writs  are  more  absolutely  under  the  control 
of  the  court  than  original  writs.     Let  the  amendment 

isChesebro  v.  Barme.  1G.3  Mass.  79. 

16  McCorniick  v.  Wheeler,  3G  111.  114,  8o  Am.  Dec.  r.SS;  Clarke  v. 
Miller,  18  Barb.  2(;0. 

17  Rollins  V.  Rich,  27  Me.  557;  Walden  v.  Davison,  15  Wend.  578; 
Ilearsiey  v.  Bradbury,  9  Mass.  95;  Wood  v.  Ross,  11  Mass.  277. 


269  AMENDING   WrUTS  OF  KXECUTION.  §06 

be  made."  ***  Where  the  error  is  in  diiectiuj^  the  writ 
to  the  sheriff  of  one  county,  when  it  is  intended  to  be 
delivered  to  the  sheriff  of  aiiotlier  count}-,  there  is 
some  doubt  whether  it  can  be  amended  so  as  to  sup- 
port proceedings  taken  in  the  latter  county.  In 
Illinois,  it  has  been  held  that  this  is  not  a  proper  case 
for  an  amendment,  and  that,  as  the  sheriff  acted  in 
the  absence  of  any  writ  directed  to  him,  a  levy  and 
sale  made  by  him  aie  incurably  void.*"  If  the  writ  is 
required  to  recite  some  pre-existing  writ  and  to  state 
the  county  to  which  it  was  issued,  the  omission  to 
comply  witli  such  requirement  is  a  mere  irregularity 
which  can  be  supplied  by  amendment.^*^ 

§  66.  Amending  Omission  of  Words  of  Command.— 
Where  the  law  authorized  executions  to  be  levied  on 
lands  and  tenements  as  well  as  on  goods  and  chattels, 
a  writ  issued,  commanding  a  levy  on  goods  and  chat- 
tels, but  omitting  the  words  "lands  and  tenements." 
Under  this  writ,  lands  were  sold  and  a  conveyance 
made  in  pursuance  of  the  sale.  About  fifteen  years 
afterward,  this  writ  and  deed,  having  been  offered  in 
evidence,  were  objected  to  for  this  defect,  whereupon 
the  court  held  as  follows:  "By  an  act  of  the  legisla- 
ture, real  estate,  quoad  hoc,  is  put  on  the  same  foot- 
ing with  personal,  and  a  plaintiff  has  the  same  right 
to  have  his  judgment  levied  as  well  of  the  one  as  the 
other.  An  execution  is  the  process  which  the  law 
gives  to  enforce  a  judgment,  and  ought  to  pursue  the 
law.     It  is  a  remedy  which  a  plaintiff  has  a  right  to 

18  CanipboU  v.  Stiles,  9  :\rass.  217.  See  Atkinson  v.  Caicher.  23 
Ark.  101;  Simcoke  v.  Frederick,  1  Ind.  54;  Morrell  v.  Cook,  31  Me. 
120. 

i9Byl)oe  V.  Asbby.  2  r.ilni.  ini.  43  Am.  Dec.  47. 

20  Eads  V.  Wynne,  70  IIuu,  4Go. 


§  67  AMENDING  WRITS  OF  EXECUTION.  270 

ask  of  the  court,  and  which  the  court  is  bound  to 
extend  to  him  to  the  utmost  extent  of  the  law.  The 
omission,  therefore,  of  the  words  'lands  and  tene- 
ments,' et  cetera,  in  the  execution  in  the  case  of 
Williams  v.  Eobertson,  is  clearly  a  clerical  mistake; 
considering  it,  therefore,  as  the  act  of  the  court,  and 
not  of  the  party,  I  should  be  disposed  to  think,  if  it 
were  necessary,  that  the  court  would — even  at  this  day 
— entertain  a  motion  to  amend  it,  so  as  to  render  it 
consistent  with,  and  make  it  as  efficient  as,  the  law 
itself."  21 

§  67.  Amendments  to  Conform  Executions  to  the 
Judgments  on  which  they  were  entered  have  been  of 
very  frequent  occurrence.  By  such  amendments,  a 
variance  in  the  name  of  the  plaintiff,  ^^  or  of  the  de- 
fendant,^^  or  in  the  date,^'*  or  amount  ^^  of  the  judg- 

21  Tooiner  v.  Purkey,  1  Const.  Ct.  R.  324,  12  Am.  Dec.  634;  Treas- 
urers V.  Bordeaux,  3  McCord,  142. 

22  Bank  of  Kentucky  v.  Lacy,  1  T.  B.  Men.  7;  Mackie  v.  Smith, 
4  Taunt.  322. 

23  Browne  v.  Hammond,  Barnes,  10;  Vogt  v.  Ticknor,  48  N.  H. 
242;  Gross  v.  Mims,  G3  Ga.  563. 

24  Chase  v.  Gilman,  15  Me.  66;  Hagerstown  Bank  v.  Weckler,  52 
Md.  30;  Woolwortli  v.  Taylor,  02  How.  Pr.  90;  Heidelback  v.  Fen- 
ton,  180  111.  312. 

25  Stevenson  v.  Castle,  1  Chit.  349;  Laroche  v.  Washbrough,  2 
Term  Kep.  737;  Doe  v.  Hue,  4  Blackf.  263,  29  Am.  Dec.  368;  McCall 
V.  Trevor,  4  Blackf.  40G;  Hutchens  v.  Doe,  3  Ind.  528;  Black  v.  Wis- 
tar,  4  Dall.  267;  Saunders  v.  Smith,  3  Kelly,  121;  Sheppard  v.  Mal- 
loy,  12  Ala.  561;  Holmes  v.  Williams,  3  Caines,  98;  Waggoner  v. 
Dubois,  19  Ohio,  104;  Bissell  v.  Kip,  5  Johns.  100;  Wright  v.  Wright, 
6  Me.  415;  Paine  v.  Spratley,  5  Kan.  525;  King  v.  Harrison,  15  East, 
615;  Murphy  v.  I^wls,  Hemp.  17;  Robb  v.  Halsey,  11  Smedes  &  M. 
140;  Smith  v.  Keen,  26  Me.  411;  Hunt  v.  Loucks,  38  Cal.  376,  99  Am. 
Dec.  464;  Spenee  v.  Rutledge,  11  Ala.  557;  Williams  v.  Waring,  5 
Tyrw.  1128;  Cromp.  M.  &  R.  354;  Bicknell  v.  Witherell,  1  Q.  B.  914; 
liinton  V.  Roach,  95  N.  C.  106;  Corthell  v.  Egery,  74  Me.  41;  Bach- 
elder  V.  Chaves,  5  N.  M.  562;  Kokomo  S.  Co.  v.  Inman,  21  N.  T. 
Supp.  705. 


271  AMENDING  WRITS  OF  EXECUTION.  §  68 

mont,  may  be  corrected;  or  the  name  of  a  party  may 
be  entirely  stricken  out  when  its  insertion  was  not 
wan-anted  by  the  judgment;'**  or  a  name  improperly 
omitted  may  be  inseited."''  Hence,  a  writ  omitting 
the  name  of  the  plaintiff  is  not  void,  but  may  be  per- 
fected by  inserting  his  name."'^  *  So,  if  the  judgment 
was  against  the  defendant  in  a  representative  capacity, 
and  the  writ  failed  to  state  this  fact,  or  stated  it  in- 
correctly, it  may  be  amended  to  conform  to  the  judg- 
ment. If  he  is  described  in  the  writ  as  a  special  ad- 
ministrator, it  may  be  amended  so  as  to  describe  him 
as  administrator  with  the  Avill  annexed,  ^®  or,  if  the 
writ  is  against  him  as  administrator  of  the  estate,  it 
may  be  amended  so  as  to  be  against  assets  of  the  estate 
which  shall  thereafter  come  into  the  hands  of  the  ad- 
ministrator to  be  administered,^"  where  such  amend- 
ments will  harmonize  the  writs  with  the  judgments 
intended  to  be  enforced  by  them.  The  style  of  the 
writ  may  also  be  amended  so  as  to  agree  with  the 
form  prescribed  by  statute.^^ 

§  68.  Amending  Errors  in  Regard  to  the  Return  Day. 
— Where  the  law  designates  the  return  day,  the  omis- 
sion to  designate  it  in  the  writ  is,  according  to  the 
majority  of  the  authorities,  a  mere  clerical  misprision 
of  no  serious  consequence.     Whether   the  return  day 

28  Goodman  v.  Walker,  38  Ala.  142;  Deloach  v.  State  Bank.  27 
Ala.  437;  Green  v.  Cole,  13  Ired.  425;  Andress  v.  Roberts,  IS  Ala.  387; 
Thompson  v.  Bonduraut,  15  Ala.  34U,  50  Am.  Dec.  136;  Ca^vthorn  v. 
Knight,  11  Ala.  579. 

27  Shaffer  v.  Watkins,  7  Watts  &  S.  219;  Morse  v.  Dewey,  3  N.  H. 
535;  Porter  v.  Goodman,  1  Cow.  413. 

2Ta  Smith  V.  Bell,  33  S.  E.  684  (Ga). 

28  Dewey  v.  Peeler,  161  Mass.  135,  42  Am.  St.  Rep.  390. 
2»  HoUIs  V.  Sales,  103  Ga.  75. 

»o  Thompson  v.  Bickford,  19  Minn.  17;  Hanna  v.  Russell,  12  Minn. 
80. 


§  63  AMENDING  WRITS  OF  EXECUTION.  272 

be  improperly  designated  or  altogether  omitted,  the 
writ  need  not  be  quashed,  but  may  be  amended  so  as 
to  make  it  to  be  what  it  should  have  been  in  the  first 
instance.^^ 

§  69.  The  Clause  of  Attestation  may  also  be 
amended.^"  Thus  an  execution  tested  after  the  de- 
fendant's death  may  be  amended  so  as  to  bear  teste 
of  the  first  day  of  the  term,  ^^  or,  if  tested  out  of  term, 
may  be  amended  so  as  to  be  tested  in  term  time.^*  S<v- 
if  the  court,  place,  or  time  at  which  the  writ  is  to  be 
returned  is  improperly  stated,  the  writ  may  be 
amended.^^  And  in  case  the  clause  of  attestation  be 
entirely  omitted,  it  may  be  inserted  as  an  amendment 
to  the  original  writ.^**  So  if  the  writ  be  attested 
in  the  name  of  the  wrong  person  as  chief  justice,  it 
may  be  amended   by  striking  out  such  name  and  in- 

31  Furtade  v.  Miller,  Barnes,  213;  KicM  v.  Crowoll,  17  Ala.  C47; 
Relabel  v.  Preston,  5  East,  291;  Walker  v.  Hawkey,  1  Marsb.  399; 
Harrell  v.  Martin,  4  Ala.  650;  Harris  v.  West,  25  Miss.  156;  Saun- 
ders V.  Smith,  3  Kelly,  121;  Cramer  v.  Van  Alstyne,  9  Johns.  386; 
Shoemaker  v.  Knorr.  1  Dall.  197;  Bertlion  v.  Iveeley,  4  Yeates,  205;; 
Goode  V.  Miller,  78  Ky.  235:  Perkins  v.  Woodfolk.  8  Baxt.  480. 

32  Haines  v.  McCormick,  5  Ark.  0G3;  People  v.  Mont.;,'omery  O.  P ,. 
18  Wend.  633;  Newnham  v.  Law,  5  Term  Rep.  577;  Englehart  t. 
Dunbar,  2  Dowl.  P.  C.  202;  Rex  v.  Sheriff,  1  Marsh.  344;  Jackson  v. 
Bowling,  10  Ark.  578;  Ripley  v.  Wairren,  2  Pick.  592. 

33  Center  v.  Billinghurst,  1  Cow.  33;  Lane  v.  Beltzhoover,  Taney^ 
110. 

34  Jones  V.  Cook,  1  Cow.  313;  Meyer  v.  Ring,  1  II.  Black,  541; 
Bprthon  v.  Keeley,  4  Yeates,  205;  Baker  v.  Smith,  4  Yeates,  185; 
Shoemaker  v.  Knorr,  1  Dall.  197. 

35  Van  Deusen  v.  Brower,  6  Cow.  50;  Inman  v.  Griswold,  1  Cow. 
199;  Atkinson  v.  Newton,  2  Bos.  &  P.  3.36;  Hart  v.  Weston,  5  Burr. 
2588;  Stone  v.  M.-irtin.  2  Denlo,  185;  Hall  v.  Ayer,  9  Abb.  Pr.  220; 
Hunt  V.  Kendrick,  2  W.  Black.  836;  Simon  v.  Guruey,  5  Taunt.  605; 
1  Marsh.  2:37;  Boyd  v.  Vanderkemp,  1  Barb.  Ch.  273;  Forward  v. 
Marsh,  18  Ala.  645;  Harrison  v.  Agricultural  Bank,  2  Smedes  &  M. 
307. 

86  Mclntyre  v.  Rowan,  3  Johns.  144. 


273  AMENDING  WRITS  OF  EXECUTION.  §  Tu 

serting  tlio  proper  oue.^''     The  signature  of  the  clerk 
may  be  added  as  an  amendment.'*** 

§  70.  Amendment  by  Affixing  Seal.— There  are  au- 
thorities of  a  very  higli  cliararter '*"  altirming  that 
the  affixing  of  the  seal  of  the  court  is  essential  to  the 
v^alidity  of  the  original  writ.  Where  this  view  is  sus- 
tained, a  motion  to  amend  by  affixing  the  seal  would 
be  unavailing,  for  no  amendment  could  operate  to  the 
extent  of  giving  life  to  a  writ  which  theretofore  was 
dead  in  law.  P>nt  where  this  view  is  not  maintained, 
the  seal  of  the  court,  having  been  omitted  at  the  issu- 
ing of  the  writ,  may  afterward  be  affixed  as  an  amend- 
ment.^® It  is  scarcely  necessary  for  us  to  add  that, 
in  our  judgment,  if  there  be  any  occasion  which  more 
than  any  other  justifies  the  amendment  of  an  execu- 
tion, it  is  when  it  is  in  other  respects  in  substantial 
conformity  to  the  law,  but  the  clerk  has  omitted  to 
impress  upon  it  the  seal  of  the  court.  From  a  mere 
inspection  of  the  writ  and  of  the  statute,  there  can  be 
no  doubt  what  omission  has  occurred  and  what  will 
supi)ly  it.  The  writ  being  a  judicial  writ,  the  court 
should  at  once,  on  its  attention  being  called  to  the  mat- 
ter, direct  of  its  own  motion  that  the  clerk  perform, 

87  Ross  V.  Liither.  4  Cow.  158.  15  Am.  Dec.  341 ;  Brown  v.  Aplin, 
1  Cow.  203;  Uniteil  States  v.  Hauford,  19  .Tolins.  173;  Henry  v. 
Henry,  1  How.  Pr.  167;  Spooner  v.  Frost,  1  How.  Pr.  192;  Nash  v. 
Bropliy.  13  Met.  47G. 

38  Whiting  V.  Beebe,  12  Arlc.  421. 

39  See  §  46;  Weaver  v.  Peasley,  163  III.  251,  54  Am.  St.  Rep.  460; 
Gordon  v.  BodwelJ,  59  Kan.  51. 

■to  Sawyer  v.  Baker,  3  Greenl.  29;  Bridewell  v.  Mooney.  25  Ark. 
524;  Doniinick  v.  Eacker,  3  Barb.  17;  Arnold  v.  Nye.  23  Mich.  2S6; 
Corwith  V.  State  Bank  of  Illinois.  IS  Wis.  560,  86  Am.  Dec.  793; 
Purcell  V.  McFarlnnd,  1  Ired.  34,  35  Am.  Dec.  734;  Clark  v.  Hcllen. 
1  Ired.  421:  Hall  v.  L.ukmoud,  50  Ark  113,  7  Am.  St.  Kep.  bi;  Taylor 
V.  Courtney,  15  Neb.  190. 
Vol.  I.— 18 


§  71  AMENDING  WRITS  OF  EXECUTION.  274 

nunc   pro   luiic,   the   duty   so   unquestionably   resting 
upon  him  when  he  issued  the  writ. 

§  71.  The  Time  within  Which  an  Execution  may  be 
amended  has  no  limit.  A  sale  of  property  may  have 
been  made  under  execution,  and  for  years  may  have 
been  confirmed  by  the  silent  acquiescence  of  all  the 
parties  in  interest.  After  time  has  thus  elapsed,  the 
execution  may  for  the  first  time  be  made  subject  to  ob- 
jection for  some  amendable  informality.  In  such  a 
case,  the  court,  irrespective  of  the  lapse  of  time,  will 
either  disregard  the  informality  or  order  the  execu- 
tion to  be  amended.  At  all  events,  the  mere  lapse  of 
time  does  not  of  itself  interpose  any  obstacle  to  the 
amendment,  and  may  even  constitute  an  additional 
reason  for  directing  it  to  be  made.  We  have  already 
shown  thnt  the  power  to  amend  is  one  which  will  be 
exercised  in  the  furtherance  of  justice.  The  fact  that 
the  defendant  in  the  writ  has  permitted  it  to  be  en- 
forced without  objection  and  that  he  or  third  persons, 
at  a  distant  day,  seek  to  avoid  its  effect  by  suggesting 
some  error  in  its  form  or  issuing  is,  of  itself,  a  reason 
for  granting,  rather  than  of  withholding,  leave  to 
amend,  and  certainly  but  few  courts  will  reward  his 
or  their  laches  by  denying  relief.*^  Among  these  few 
are  the  courts  of  Texas.  They  make  a  distinction, 
which  they  nowhere  clearly  explain,  between  what 
they  style  amendments  in  matters  of  form  and  amend- 
ments in  matter  of  Substance;  and  hold,  with  respect 

41  Adams  v.  Ilissins,  23  Fla.  1.3;  Bybee  v.  Ashby,  2  Gilra.  151, 
43  Am.  Dec.  47;  Lewis  v.  Lindley,  28  111.  147;  Vogt  v.  Ticknor,  48 
N.  H.  242;  Pliolps  v.  Ball,  1  .Tohiis.  Cas.  31;  Holmes  v.  Williams.  3 
Cal.  98;  Sickler  v.  Overtoil.  3  Pa.  St.  325;  Giles  v.  Pratt.  1  Hill  fS. 
C.)  239,  20  Am.  Dee.  170;  Galloway  v.  !\reKeitbon,  5  Ired.  12,  42  Am. 
Dec.  153;  Saltin  v.  Austin,  19  Wis.  421. 


275  AMENDING  WRITS  OF  EXKCUTION.  §  71^ 

to  matters  of  substance,  that  aiin-nduieuts  will  iioL  be 
authorized  after  a  sale  has  been  made  under  a  writ. 
They  insist  (hat  when  a  writ  is  substantially  defective, 
any  sale  thereunder  probably  resulted  in  a  sacrifice  of 
the  def<'ndaut's  property  throuj^h  its  rcalizinj;-  but  an 
inadequate  price,  because  prudent  persons  declined  to 
compete  at  a  sale  likely  or  surely  to  be  declare<l  in- 
valid. This  result  must  follow  decisions  like  those  in 
that  state,  but  if  they  had,  on  the  other  hand,  sus- 
tained the  ri<;ht  to  amend  writs  in  proper  cases  after 
sales  made  thereunder  the  evil  they  seek  to  avoid  would 
not  have  been  called  into  bein<j;.  Among  the  writs 
held  in  this  state  to  be  nouaniendable  after  a  sale 
thereunder,  because  of  defects  in  matter  of  substance, 
were  an  execution  against  P.  B.  C.  on  a  judgment- 
against  J.  P,  C.,*^  against  C  B.  and  \\m.  11.  on  a  judg- 
ment against  C.  B.  and  II.  W.  V.  11.;^='  and  an  execu- 
tion commandiug  a  sale  of  the  property  of  the  execu- 
tors named  therein  when  the  judgment  authorized  the 
sale  of  the  property  of  the  estate  in  their  hands  as 
such  executors.** 

^  71  a.  The  Effect  of  Ameniiing  an  Execution  is  gen- 
erally to  give  the  writ  the  same  operation  as  if  origi- 
nally issued  in  due  form.*"*     Unless  this  were  the  case, 

<2  Battle  V.  (;iKHlr.v.  58  Tex.  111. 

«  Morris  v.  I'.allcham.  75  Tex.  Ill,  IG  Am.  St.  Rep.  874. 

<*  McKay  v.  Paris  Exchange  Bank,  75  Tex.  181,  IG  Am.  St.  Ilep. 
884. 

•»3  Clugfrage  v.  Duncau,  1  Serg.  &  R.  Ill;  Morse  v.  Dewey.  3  N. 
n.  535;  Abels  v.  Westervelt,  24  How.  Pr.  284;  Bourdoaux  v.  Treas- 
urers, 3  McGuril,  142;  Toomer  v.  Purkey,  1  Cons.  Rep.  323,  12  Am. 
Dec.  634;  Porter  v.  Goodman.  1  Cow.  413;  MeCormaek  v.  Melton,  1 
Ad.  &  E.  331;  Thorpe  v.  Hook,  1  Dowl.  P.  C.  501;  Sickler  v.  Over- 
ton, 3  Pa.  St.  325;  Jackson  v.  Anderson.  4  Wend.  474;  Den  v.  Lecony, 
1  Coxe  (N.  .T.).  m:  Hunt  v.  Kondrick,  2  W.  Black.  S:^G:  Mackic  v. 
Smith,  4  Taunt.  32J;  Saunders  v.  Smith,  3  C.a.  121;  Phelps  v.  Ball. 


§  71a  AMENDING  WRITS  OF  EXECUTION.  276 

the  amendment  would  accomplish  no  useful  purpose. 
If  an  officer  is  sued  for  not  executing  a  writ  or  for 
negligence  in  its  execution  it  may  be  amended  pend- 
ing that  action  or  during  the  trial.'**^  If  a  sale  has 
taken  place,  the  writ  may  be  amended  and  as  amended 
may  ever  thereafter  be  offered  in  support  of  such 
sale.^''  If  the  action  is  for  false  imprisonment  the 
defendant  may  have  the  ca.  sa.  under  which  he  acted 
amended  to  conform  to  the  judgment  on  which  it 
issued,  and  then  justify  under  the  writ  as  amended.'*'* 
The  same  action  may  be  taken  and  the  same  result 
accomplished  where  the  defendant  is  sued  for  trespass 
in  levying  the  writ.'*"  In  many  instances  the  amend- 
ment of  an  execution  may  properly  be  described  as 
having  no  effect  whatsoever.  When  the  amendment 
is  to  cure  a  clerical  error  or  defect  obvious  from  the 
record,  or,  in  other  words,  where  the  record  discloses 
the  error  and  supplies  the  data  for  its  correction,  no 
formal  amendment  is  necessary,  and  the  writ  will,  in 
all  collateral  proceedings,  be  treated  as  amend^.*'^^ 
It  is  true,  there  are  some  cases  treating  the  amend- 
ment of  an  execution  as  a  matter  within  the  discretion 

1  Johns.  Cas.  31;  Cherry  v.  W'oolard,  1  Ired.  438;  Suydam  v.  Mc- 
Coon,  Coleman's  Cases,  59;  Lewis  v.  Lindley,  28  111.  147;  Durham 
V.  Heaton,  28  111.  264,  81  Am.  Dec.  275;  Adams  v.  Higgins,  23  Fla.  13; 
Hall  V.  Lackmond,  50  Ark.  113,  7  Am.  St.  Rep.  84;  Ware  v.  Kent, 
2(5  So.  208  (Ala.). 

46  Hargrave  v.  Penrod,  Breese,  401,  12  Am.  Dec.  201. 

47  Lewis  V.  Lindley,  28  111.  147;  Durham  v.  He.aton,  28  111.  264,  81 
Am.  Dec.  275;  Jackson  v.  Anderson,  4  Wend.  474. 

48  Holmes  v.  Williams,  3  Cainos,  98. 

49  Porter  v.  Goodwin,  1  Cow.  413. 

50  Den  V.  Lecouy,  1  Coxe  (N.  J.)  Ill;  Morse  v.  Dewey,  3  N.  II.  5.35; 
Sheppard  v.  P.land,  87  N.  C.  163;  GriswoUl  v.  Connolly,  1  W^oods,  193; 
Corthell  v.  Egery,  74  Me.  41;  Cluggage  v.  Duncan,  1  Serg.  &  R.  111. 
Portis  V.  Parker,  8  Tex.  23,  58  Am.  Dec.  95;  Hunt  v.  Loucks,  38 
Cal.  372,  90  Am.  Dec.  404;  Corwith  v.  State  Bank,  18  Wis.  .560,  86 
Am.  Dec.  79.".:  Durham  v.  Ileatou.  28  111.  264.  81  Am.  Dec.  275; 
Wright  y.  Xostrand,  94  N.  Y.  32,  and  other  cases  cited  in  §  72. 


■277  AMENDING  WRITS  OF  EXKCUTION.  §  7Ia 

of  the  court,  to  be  granted  or  refused  according  to  its 
notions  of  justice.^^  If  this  view  were  correct,  then 
we  do  not  understand  how  a  writ  can  be  treated  as 
amended  in  advance  of  an  order  authorizing  its  amend- 
ment, for  prior  to  that  time  it  cannot  be  known  how 
the  discretion  will  be  exercised.  But  where  the 
amendment  is  proper,  we  conceive  that  its  allowance 
is  not  a  matter  of  discretion.  There  being  a  valid 
judgment  and  a  writ  obviously  issued  upon  it,  though 
tainted  by  some  mere  clerical  omission  or  defect,  it 
is  the  duty  of  the  court  to  give  due  effect  to  such  judg- 
ment and  writ,  and  all  proceedings  based  thereon,  at 
least  until  some  direct  motion  or  proceeding  is  taken 
to  quash  the  writ  or  proceedings  for  irregularity,  and 
^ven  then  the  better  practice  is  to  amend  the  writ  and 
purge  it  of  the  irregularity  rather  than  to  destroy  it, 
and  annul  the  proceedings  taken  for  its  enforcement.^^ 
As  a  consequence  of  the  general  principle  that  void 
writs  are  not  amendable,  the  court,  in  determining 
whether  leave  shall  be  granted  to  amend  a  writ,  must 
consider  or  determine  whether  or  not  it  is  void. 
Hence,  an  order  granting  leave  to  amend  is  necessarily 
an  adjudication  that  the  writ  is  amendable  and  not 
void.  Therefore,  if  such  an  order  has  been  made  and 
the  writ  has  been  amended  in  conformity  therewith, 
-all  persons  over  whom  tlie  court  had  jurisdiction  in 
making  the  order  are  bound  by  it,  and  are  no  longer  at 
liberty  to  assert  that  the  writ  is  void,  and  cannot  sus- 
tain sales  made,  or  other  proceedings  taken  under  it.'""' 

ci  Hayford  v.  Everett,  6S  Me.  505. 

"See  §  78:  Cheney  v.  Beall,  69  Ga.  533;  but  in  this  state  the 
code  provides  that  the  amendment  of  an  exec-ution  avoids  a  previous 
levy  thereunder.  Beasley  v.  Bowden,  58  Ga.  154;  Jones  v.  Parker, 
€0  Ga.  500. 

M  Adams  V.  Iliggins,  23  Fla.  13. 


§  71b  AMEM>1N(;   WRITS  OF  EXECUTION.  2T& 

§  71  b.  The  Effect  of  not  Amending  an  Execution  is 
apparent  from  the  principles  stated  and  the  authori- 
ties cited  in  the  preceding  section.  If  leave  to  amend 
is  not  sought  and  obtained,  the  plaintiff  and  others 
claiming  under  the  writ  have  not  the  advantage  re- 
sulting from  the  determination  of  the  court  that  the 
writ  is  amendable,  and  may  therefore  sustain  sales 
made  under  it.  In  other  words,  this  question  remains 
an  open  one.  Those  claiming  that  the  writ  is  amend- 
able are,  however,  at  liberty  to  urge  their  claim  in 
any  proceedings  in  which  it  may  be  material,  and  if 
they  satisfy  the  court  that  such  is  the  case,  the  writ 
will  usually  be  accorded  the  same  effect  as  if  it  had 
been  amended  upon  leave  granted  thert^for.^*  From 
this  rule,  motions  and  other  proceedings  to  quash  or 
recall  the  writ  must  be  excepted.  Upon  the  hearing 
of  such  a  motion,  the  court,  though  of  the  opinion 
that  tlie  writ  is  amendable,  may  also  reach  the  con- 
clusion that  justice  will  be  promoted  by  quashing  or 
recalling  it,  and  may  therefore  grant  the  motion  in- 
stead of  directing  an  amendment.  It  is  therefore  ad- 
visable in  all  cases  where  a  writ  is  found  to  be  in- 
fected by  amendable  defects  to  procure  an  order 
granting  leave  to  remove  them  by  an  amendment,  for 
by  such  order  the  plaintiff  and  those  claiming  under 
him  are  protected  from  the  perils  attendant  upon  a 
motion  to  quash  it,  and  are  secured  the  advantage  of 
the  adjudication  involved  in  the  order,  to  the  effect 
that  the  defects  in  question  are  amendable  in  their 
character. 

B4  De  Loach  v.  bobbins.  102  Ala.  28S,  48  Am.  St.  Eep.  4G;  Adams 
V.  Iliggius,  23  Fla.  28;  Anderson  v.  Gray,  134  111.  .'..50,  23  Am.  St. 
Kep.  fiOO;  Corthell  v.  Egery,  74  Me.  41;  Den  v.  Leeouy,  1  N.  J.  L.  111.. 
131;  Sabin  v.  Austin,  19  Wis.  421. 


'27J  A.MKNlJlN<-i   WUILS  OF  EXECUTION.  §  T-' 

§  72.    Persons   against  Whom  Amendments   may  be 

Made,  in  (juite  a  iiumbcr  ol"  cases,  the  j^ciicral  dec- 
laration is  made  lliat  an  amendmeut  of  a  writ  will 
not  be  made  when  it  will  prejudice  the  interests  of 
third  persons.'""^  On  examining  these  cases,  it  will 
generally  be  found  that  the  third  persons  against 
whom  the  court  refused  to  authorize  an  amendment 
were  not  in  a  situation  entitling  them  to  any  par- 
tiality from  the  court.  They  were,  in  most  cases, 
cither  the  assignees  in  bankruptcy  of  the  defendant, 
or  his  personal  representatives,  the  assignment  on  the 
one  hand  and  the  defendant's  decease  on  the  other 
having  taken  place  subsequently  to  the  issue  of  the 
writ  sought  to  be  amended.  Neither  the  assignees  nor 
rei)resentatives  were  purchasers  for  value,  nor  in  any 
respect  the  holders  of  any  special  equities;  and,  being 
the  mere  successors  of  the  defendant's  interests,  we 
cannot  understand  why  they  were  in  condition  to 
resist  anything  to  whicli  his  resistance,  if  made  prior 
to  the  assignment  or  decease,  would  have  been  un- 
availing, liut  conceding  the  rule  to  be  too  well 
established  by  authority  to  be  overthrown  by  argu- 
ment, we  conceive  that  it  must  be  given  a  very  re- 
stricted application  and  must  be  confined  to  those 
instances  where  a  motion  to  quash  the  writ  is 
promptly  made,  and  where  no  one  but  the  plaintiff 
can  be  injured  by  refusing  the  amendment.  There 
are  two  classes  of  third  i)ersons  w^liose  interests  may 
be  affected   by  a  proposed   amendment,  namely,  those 

55  Brooks  V.  ITo(lsoii.-7  Mnn.  &  G.  ',20.  8  Scott  N.  R.  22.''.;  Hunt  v. 
Pasinan.  4  Manlo  v<c  S.  ?,20;  Phillips  v.  Tanuor.  0  Bins.  237,  3  Moore 
&  P.  riG2;  Lovett  v.  Kibblewliito,  C  Taunt.  483;  Webber  v.  Hutcbins, 
8  Meos.  &  W.  319;  Johnson  v.  Dobell,  1  Moore  &  P.  28;  Cape  Fear 
Bank  v.  "Williamson,  2  Ired.  147;  Ohio  Life  Ins.  Co.  v.  Urbana  Ins. 
Co..  13  Ohio,  220. 


§  72  AMENDING  WRITS  OF  EXECUTION.  2S0 

who  have  derived  title  from  the  defendant,  and  are 
therefore  interested  in  avoiding  the  writ;  and,  sec- 
ondly, those  who  have  made  purchases,  and  are  de- 
raigning-  title  by  aid  of  the  writ,  and  therefore  inter- 
ested in  maintaining  its  validity.  The  latter  class 
will  no  doubt  be  protected  by  amending  the  writ,  if 
it  be  amendable.  In  fact,  it  seems,  so  far  as  their 
interests  are  involved,  superfluous  to  order  an  amend- 
ment; for  Avhere  an  amendment  is  proper,  it  will,  in 
collateral  proceedings,  be  treated  as  if  actually 
made.^^  In  determining  whether  an  amendment 
should  be  allowed  against  the  objection  of  third  per- 
sons, an  inquiry  must  be  made  whether  such  persons 
had  any  actual  or  constructive  notice  of  the  facts  upon 
which  the  claim  to  the  amendment  is  based.  If,  by 
inspecting  the  whole  record  in  the  case,  they  could 
have  ascertained  that  the  proposed  amendment  would 
be  authorized,  they  must  be  regarded  as  charged  with 
constructive  notice,  and  as  holding  their  interest  in 
subordination  to  the  right  of  amendmfMit.^''  "The 
subsequent  purchaser  or  creditor  being  chargeable 
with  constructive  notice  of  what  is  contained  on  the 
record — if  he  has  there  sufficient  to  show  him  that  all 
the  requisitions  of  the  statute  have  probably  been 
complied  with,  and  he  will,  notwithstanding,  attempt 
to  procure  a  title,  under  the  debtor — he  should  stand 

B«  Den  V.  Lecony,  Coxe,  111;  Stephens  v.  White.  2  W^nsh.  (V;i.) 
20.3;  Williams  v.  Brown,  28  Iowa,  247;  Hunt  v.  Loucks,  38  Cal.  372. 
IK)  Ara.  Dec.  404;  Cooley  v.  Brayton,  16  Iowa,  10;  Corwith  v.  State 
Bank  of  Illinois,  18  Wis.  560,  8(i  Am.  Dec.  793;  Durliam  v.  Heaton, 
28  111.  264,  81  Am.  Dec.  275;  Morrell  v.  Cook,  31  Me.  120;  Doe  v. 
Gildart,  4  How.  (Mi.ss.)  2G7;  Toomer  v.  Purkey,  1  Const.  Ct.  324,  12 
Am.  Dec.  634;  Hubbell  v.  Fogartie,  1  Hill  (S.  C),  1G7;  Giles  v.  Pr.itt, 
1  Hill  (S.  C),  2.39,  26  Am.  Dec.  170;  Owen  v.  Simpson,  3  Watts,  87; 
Morse  V.  Dewey,  3  N.  H.  535;  Sabin  v.  Austin,  19  Wis.  421. 

67  Fairfield  v.  Paine,  23  Me.  498;  Rollins  v.  Rich,  27  Me.  557. 


2S1  AMENDING  WRITS  OF  EXECUTION.  §  72 

charjijc'jiblo  with  notice  of  all  facts  the  existence  of 
which  is  indicated  and  rendered  probable  by  what 
is  stated  in  the  record,  and  the  existence  of  which  can 
be  satisfactorily  shown  to  the  court.  And  in  such 
cases  amendments  should  be  allowed,  notwithstand- 
ing the  intervening  interests  of  such  purchaser  or 
<reditor."  ^® 

68  Wbittler  v.  Varney,  10  N.  H.  SOL 


§  73  QUASHING  WRITS  OF  EXECUTION.  28^' 


CHAPTER  VII. 

QUASHING  WIMTS  OF  EXECUTION. 

§  73.  Void  or  voidable  writs  may  be. 

§  T^a.  Classification  of  grounds  Tor  vacating. 

§  74.  Notice  of  motion. 

§  75.  Who  may  apply  for,  and  to  what  cotirt. 

§  7(J.  Time  Avithiu  which  motion  for  should  be  made. 

§  77.  Grounds  for  quashing  for  errors  in  issuing. 

§  78.  Quashing  for  errors  in  form. 

§  7'J.  In  Ceorgia,  by  affidavit  of  illegality. 

§  bO.  Consequences  of  quashing. 

§  73.  Void  or  Voidable  Executions  may  be  Quashed. 
— Whenever  an  execution  has  been  improperly  issued, 
the  most  speedy  and  convenient,  and  in  most  cases 
the  only,  remedy  of  him  against  whom  it  runs,  is  by 
motion  to  quash  or  set  it  aside.  Executions  which  are 
liable  to  be  thus  vacated  are  divided  into  two  great 
classes,  namely,  void  and  voidable.  A  void  writ  is  on(' 
which  can  have  no  force  whatever,  unless  perhaps  as 
a  justification  to  an  officer  having  no  notice  of  its  in- 
^validity;  while  a  voidable  writ  is  one  which,  though 
erroneous,  is  valid  until  vacated  by  some  proper  pro- 
ceeding. It  is  true  that  these  definitions  may  be  of  no 
material  assistance  in  enabling  the  practitioner  to  de- 
termine whether  a  particular  writ  belongs  to  the  one 
class  or  to  the  other;  for  they  state  rather  the  result 
of  the  writ  when  adjudged  to  belong  to  one  of  these 
classes  than  the  indicia  by  which  it  may  be  properly 
classified.  Nor,  in  view  of  the  many  conflicting  deci- 
sions, is  it  possible  to  state  these  indicia  with  any  de- 
gree of  confidence.    An  execution  from  a  court  having 


2S3  QUA.SlllNG   WlllTb  OF  EXECUTlUN.  §  To 

uo  authority  to  issue  executions,  or  from  a  court  no 
louj^er  in  existence,  or  upon  a  voi<l  jiHlj^nieut,  or  a 
judgment  never  rendered,  would  uii(l(nil)i(M]ly  be  void. 
The  same  may  be  attirmed  of  executions  issued  by 
some  one  having  no  authority  to  issue  executions. 
Executions  on  satisfied  judgments,  or  against  a  de- 
fendant whose  property  cannot  be  taken  in  execution, 
or  for  or  against  a  sole  plaintiff  or  defendant  who  died 
prior  to  the  teste  of  the  writ,  when  there  has  been  no 
revivor — are,  according  to  a  preponderance  of  the  au- 
thorities, void.  Various  errors  in  issuing  the  writ,  .as 
at  an  improper  time,  or  in  an  improper  form,  may  be 
urged  as  grounds  for  declaring  it  void,  and  will  be  re- 
ceived with  different  degrees  of  attention  in  different 
courts.  The  decisions  upon  these  subjects  have  been 
considered  in  the  second  and  third  chapters  of  this 
worlc.  AN'lien  a  writ  is  void,  it  can  derive  no  validity 
from  the  defendant's  inaction.  He  is  not  compelled  to 
move  to  have  it  vacated,  lie  may  disregard  it  alto- 
gether, and  may,  at  any  time,  successfully  resist  any 
claims  based  upon  it.  It  may,  however,  be  employed 
to  cloud  his  title,  or  to  subject  him  to  various  an- 
noyances. The  better  course  for  him  is  to  have  it 
quaslied.  And  that  courts  will  vacate  void  process, 
and  also  process  based  on  void  judgments,  and  there- 
by relieve  the  defendant  from  annoyance,  there  can  bo 
no  doubt.^  Hence,  if  a  judgment,  as  originally  en- 
tered, foreclosing  a  lien,  does  not  declare  any  personal 
liability  against  the  defendant,  and  the  pleadings  are 
not  such  as  to  necessarily  establish  such  a  liability, and 

1  Mabry  y.  State,  9  Tors:.  208:  Avery  r.  R.ibcock.  :;.-.  111.  17.-; 
Kroess  v.  Hotiilinir.  90  Cal.  017;  lUcb  v.  Kisor,  Gl  Ca.  P,70:  Amy  v. 
Smith.  1  Mot.  (Ky.>  529:  Ex  parto  Jamos.  '>9  "Mo.  SO:  Xcwton  v.  New- 
ton, 32  Mo.  App.  1G2;  Cuuniugham  v.  Wrigbt,  27  111.  App.  334. 


§  73  QUASHING  WRITS  OF  EXECUTION.  284 

the  court  af terwaid  orders  the  judgment  to  be  amended 
and  directs  the  docketing  of  a  judgment  against 
the  defendant  for  a  deficiency  arising  after  the  sale  of 
the  property  subject  to  the  lien,  such  amendment  be- 
ing void,  the  court  may  quash  the  execution,  though  it 
refused  to  vacate  the  order  directing  the  amendment/'* 
The  statement  that  an  execution  will  be  quashed  if  is- 
sued on  a  void  judgment  is  but  another  mode  of  affirm- 
ing that  an  execution  must  be  supported  by  a  judg- 
ment. If  no  judgment  has  in  fact  been  rendered, 
there  can  be  no  right  to  execution  though  the  jury  has 
returned  a  verdict  on  which  a  judgment  might  or 
should  have  been  entered,  and  any  writ  issued  in  ad- 
vance of  the  rendition  of  the  judgment  should  be 
quashed.^ 

This  power  is  not,  so  far  as  we  are  aware,  restricted 
to  courts  of  any  class.  On  the  contrary,  it  may  be  ex- 
ercised by  courts  of  every  class.  A  justice  of  the  peace 
who  has  issued  an  execution  in  which  he  has  included 
illegal  fees  may  recall  it  before  action  has  been  taken 
thereunder  and  thereby  relieve  himself  from  liability 
for  his  wrongful  act.*  Courts  of  chancery  also  exer- 
cise a  superintending  authority  over  their  writs  and 
will  quash  or  recall  them  when  they  have  been  improp- 
erly issued,  and  even  when  properly  issued,  if  it  is  no 
longer  proper  to  execute  thern.^ 

The  remedy  by  motion  to  quash  is  often  exclusive. 
Instead  of  resorting  to  such  a  motion  or  proceeding,  a 
suit  may  be  brought  to  enjoin  or  prohibit  further  action 
under  the  writ.     It  is  usually  a  sufficient  answer  to 

2  Scamman  v.  Bonslett,  118  Cal.  293,  62  Am.  St.  Rep.  226. 
s  Lowther  v.  Davis.  33  W.  Va.  132. 
*  Chase  v.  De  Wolf,  69  111.  47. 

sWindnim  v.  Porker,  2  Leish,  3G1 ;  Chapin  v.  .Tamos,  11  R.  I.  86. 
23  Am.  Rep.  412;  Snavely  v.  Ilarkrader,  30  Gratt.  492. 


285  QUASHING  WRITS  OF  EXECUTION.  S  73a 

such  a  suit  or  proceeding  that  au  adequate  remedy  e^i. 
isted  iu  the  court  whence  the  writ  issued  hy  motion  to 
quash  or  recall  it." 

§  73  a.  Classification  of  Grounds  for  Vacating.— An 
execution  may  be  quashed — 1.  When  no  writ  could 
properly  issue  at  the  time  of  the  issuance  of  the  writ 
in  question;  and  2.  AYhen,  though  a  writ  of  execution 
could  properly  issue,  the  one  sought  to  be  vacated  was 
issued  without  authority,  or  by  some  person  not  author- 
ized to  issue  it,  or  is  irregular  in  form,  or  not  warranted 
by  the  judgment  on  which  it  is  based,  or  although 
warranted  when  issued,  some  fact  subsequently  occur- 
ring has  made  its  enforcement  improper.  The  cases  of 
the  first  class  may  in  turn  be  classified  as  including, 
1.  Writs  issued  upon  void  judgments.  2.  Writs  issued 
upon  judgments  which  have  been  satisfied  or  other- 
wise rendered  inoperative,  and  3.  Writs  issued  on  valid 
judgments  but  at  a  time  when  the  right  to  execution 
had  not  accrued  or  had  been  suspended  by  operation 
of  law,  by  an  order  of  court,  or  by  the  agreement  of  the 
parties. 

The  motion  to  quash  is,  in  no  sense,  a  revisory  or  ap- 
pellate proceeding  directed  against  the  judgment.  An 
irregular  or  erroneous  judgment  will,  as  long  as  it  re- 
mains in  force,  support  an  execution.  Hence  an  exe- 
cution will  not  be  vacated  because  the  judgment  was 
erroneous  or  irregular,  nor  will  such  error  or  irregular- 
ity, antecedent  to  the  judgment,  be  considered  by  the 
court  on  motion  to  quash  the  execution.'^     By  this  we 

«  Atkins  V.  Siddons,  GG  Ala.  4ri3;  Martin  v.  Atkinson,  lOS  Ala. 
314;  "Wordehoff  v.  Evirs.  IS  Fla.  399;  Coward  v.  Cliastaln.  99  N.  C. 
443,  6  Am.  St.  Rop.  533:  Dnclioneau  v.  Ireland.  .">  Utah.  lOS. 

7  Sohultzo  V.  Stato.  43  Md.  29.");  Galena  &  S.  W.  R.  R.  v.  Ennor.  9 
III.  App.  159;  Ila'l  v.  Clafjuvlt,  c.',  Md.  .^7:  Boyle  v.  Robinson,  7  Har. 
&  J.  2U0;  Stephens  v.  WiLsou,  14  B.  Mou.  SS. 


5  73a  QUASHING  WRITS  OF  EXECUTION.  2SG 

mean  to  assert  only  that  no  errors  or  irregularities  in 
tbe  proceedings  anterior  to  the  judgment,  or  at  the 
Time  of  its  entry,  are  available  as  grounds  for  relief, 
unless  they  are  of  such  a  character  that  the  judgment, 
if  permitted  to  stand,  and  the  proceedings  taken  by 
virtue  of  its  authority,  must  be  held  void.  Hence  it  is 
not  material  that  the  error  or  irregularity  complained 
of  is  manifest  from  an  inspection  of  the  record  and 
that  the  complaint  should  have  been  adjudged  insuffi- 
cient,® or  for  some  other  reason  the  court  ought  not  to 
liave  given  tlie  judgment  which  it  in  fact  rendered.^ 
This  proceeding  cannot  be  resorted  to  for  the  purpose 
of  escaping  from  any  error  of  law  or  in  fact,  inducing 
or  influencing  the  rendition  of  the  judgment,  except 
tliat  of  proceeding  to  render  it  when  the  court  was 
without  jurisdiction  of  the  subject  matter  or  of  the 
parties.^^  A  motion  to  quash  an  execution  may 
<loubtless  be  joined  with  a  motion  to  vacate  the  judg- 
ment on  which  it  was  founded  on  the  ground  that  such 
judgment  is  void,  but  the  mere  motion  to  quash  the 
writ  cannot  itself  involve  any  change  in  or  correction 
of,  the  judgment.  "A  motion  to  quash  an  execution,  it 
would  seem,  could  never  involve  interference  with,  or 
change  of,  the  judgment  of  the  court.  The  inquiry  on 
such  motion  must  needs  be  whether  or  not,  under  the 
judgment  rendered  and  the  attendant  facts,  the  process 
of  execution  and  its  enforcement  are  justified  under 
the  law." 

Nor  is  a  motion  to  quash  the  execution  the  proper 

8  Seaman  v.  Paddock,  51  Mo.  App.  4oG. 

9  Edwards  v.  llollinfrs,  103  Cal.  204;  Town  of  Hay  ward  v.  Pi- 
iiK'ntnl,  107  C:il.  380;  Green  v.  Alexander,  88  Ga.  161;  Johnson  v. 
Grave,  GO  Mo.  App.  170. 

loindinn  etc.  D.  Dist.  v.  Root,  28  111.  App.  59G;  Gerhart  v.  Fout, 
7]   -Mo.  App.  138. 


2S7  QUASHING  WRITS  OF  EXECUTION.  §  74 

raode  of  revising  or  controlling  the  aets  of  tlie  officer 
who  is  seeking  to  enforce  it.  If  he  h'\  i(  s  upon  property 
not  subject  to  execution,  this  does  not  make  the  writ 
irregular.  The  remedy  in  such  case  is  by  some  pro- 
ceeding against  the  officer  to  recover  the  property 
improperly  seized.  His  unlawful  act  furnishes  no 
ground  for  vacating  the  writ.*^  This  rule  is  equally 
applicable  whether  it  be  claimed  that  the  officer  has 
seized  proix-rty  not  subject  thereto/"  or  has  insisted 
upon  charging  excessive  fees,*^  or  denied  the  judgment 
(k'btor  some  privilege  to  which  he  was  entitled,^*  or  the 
writ,  being  for  the  sale  of  specified  articles,  the  sheriff 
h'vied  upon  others.*'"^  This  must  necessarily  be  so  be- 
cause the  motion  is  directed  against  the  writ  and 
founded  upon  a  supposed  invalidity  either  in  it  or  the 
judgment,  and  the  writ  is  not  the  act  of  the  sheriff,  nor 
<an  it  be  rendered  invalid  or  inoixa-ative  by  him  excej^t 
through  his  taking  proceedings  resulting  in  its  satis- 
faction or  suspension. 

A  motion  to  quash  may  be  acted  on  at  any  time  when 
the  court  is  in  session,  without  any  regard  to  the  term 
of  the  court  at  which  the  judgment  was  rendered.  The 
<'ourt  in  such  action  simply  supervises  the  action  of  its 
ministerial  officers  so  as  to  prevent  misuse  and  abuse 
of  its  process.*^ 

§  74.  Notice  of  Motion  for. — Whenever  the  defend- 
ant seeks  to  have  a  writ  against  him  quashed,  he  should 
apply   to  the  court   on    motion,  giving   his  adversary 

11  Hnsty  V.  Simpson,  &4  N.  C.  500. 

12  itoth  V.  Insloy.  Sij  Cal.  134;  Gallon  v.  Lafayette  Co.,  125  Mo. 
i;7;  Hasty  v.  Sinii»son,  84  N.  C.  590. 

't  Sheboysiiu  Uauk  v.  Trilliiij?.   75  Wis.  163. 

14  Dougla.'?  V.  Sln,aer  M.  Co.,  102  Ga.  5G0. 

15  Fisher  v.  .Tones.  0.'^>  Ca.  717. 
lailanisin  v.   Ilniinu^r.  ;>".)  Ala.  i;00. 


§  74  QUASHING  WRITS  OF  EXECUTION.  2SS 

notice  of  the  intended  application,  and  of  the  grounds 
upon  which  it  is  based.  The  party  whose  writ  is 
sought  to  be  vacated,  and  any  purchaser  deraigning 
title  therefrom,  are  entitled  to  this  notice,  and  any 
action  against  them  in  its  absence  is  erroneous.  This 
is  particularly  the  case  where  the  existence  of  the  ir- 
regularity complained  of  cannot  be  determined  from  an 
inspection  of  the  record.*"  In  truth,  the  failure  to 
serve  notice  upon  new  parties  to  be  affected  is  of  more 
consequence  than  a  mere  error  or  irregularity.  The 
notice  is  jurisdictional  and  one  who  is  not  served  with 
it  is  not  bound  by  an  order  based  upon  it  and  may  still 
rely  upon  the  quashed  writ  to  the  same  extent  as  if  no 
proceeding  had  been  taken  to  vacate  or  recall  it.*^  The 
notice  should  be  served  personally  on  the  parties  inter- 
ested. After  judgment  has  been  recovered,  the  author- 
ity and  duty  of  the  plaintiff's  attorney  generally  cease. 
Service  of  notice  of  motion  to  quash  should  therefore  be 
served  upon  the  plaintiff,  and  not  upon  his  attorney  in 
the  case,  unless  it  appears  that  such  attorney  is  still 
retained  by  plaintiff,  and  has  authority  to  represent 
him  on  the  hearing  of  the  motion.*^  The  proceeding 
to  quash  is  a  new  or  original  proceeding,  from  which 
fact  two  results  follow:  1.  It  may,  though  the  party 
appeared  in  the  action  by  one  attorney,  be  prosecuted 

17  Dazey  v.  Orr,  1  Scam.  535;  Irou  v.  Callard,  1  A.  K.  Marsh.  423: 
Bentley  v.  Cummins,  8  Ark.  490;  Osburn  v.  Cloud,  21  Iowa,  238; 
Eckstein  v.  Calderwood,  34  Cal.  658;  Linn  v.  Hamilton,  34  N.  J.  L. 
305;  Payne  v.  Tayue's  Ex'r,  8  B.  Mon.  391;  Mann  v.  Nicbols,  1 
Smedes  &  M.  257;  State  Bank  v.  Marsh,  10  Ark.  129;  McKissack  v. 
Davis,  18  Ala.  315;  Irons  v.  McQuewan,  27  Pa.  St.  39(5,  67  Am.  Dec. 
4.56;  Lyster  v.  Brewer,  13  Iowa,  461;  McKinney  v.  Jones,  7  Tex. 
598,  58  Am.  Dec.  83;  National  F.  Co.  v.  McClintock,  162  Pa.  St.  141. 

IS  Lock  V.  Slusher  (Ky.),  43  S.  AV.  471;  Duncan  v.  Brown,  15  S.  C. 
414;  Freeman  v.  Dawson,  110  IT.  S.  264, 

18  Duncan  v.  Brown,  15  S.  C.  414. 


289  QUASHING  WRITS  OF  EXFX'UTION.  §  75 

in  his  behalf  by  another  without  takin*^  any  measures 
to  discharge  the  orij^inal  attorney  or  to  substitute  any 
one  in  his  stead,-"  and  2.  Though  the  person  or  persona 
to  be  affected  by  the  granting  of  the  motion  have  ap- 
peared iji  the  action  by  an  attorney,  they  cannot  be 
brouglit  before  the  court  merely  by  serving  notice  on 
him.  He  does  not,  by  virtue  of  his  original  employ- 
ment, continue  to  represent  them  after  the  entry  of 
the  judgment  in  respect  to  proceedings  commenced  to 
vacate  the  writ  issued  for  its  enforcement.  They  must 
again  be  brought  before  the  court  by  some  notice  of  a 
jurisdictional  character.-^  The  notice,  especially  if 
the  ground  of  the  motion  is  that  there  was  no  author- 
ity to  issue  the  writ,  need  not  describe  the  precise  irreg- 
ularity upon  which  the  moving  party  will  rely,  but  is 
sufficient  if  it  states  that  the  motion  is  to  quash  or 
recall  the  writ  "for  the  reason  that  it  was  wrongfully, 
unlawfully  and  improperly  issued."  ^^ 

§  75.  Who  may  Apply  for  and  to  What  Court. — 
The  general  rule  that  none  but  the  parties  to  a  suit 
will  be  allowed  to  interfere  with  its  management  is 
equally  applicable  to  the  writ  of  execution  wiiich  may 
be  issued  at  the  termination  of  the  action.  None  but 
the  parties  to  the  writ,  who  are  liable  to  be  injured  by 
it,  can  complain  of  irregularities  with  which  it  may  be 
infected.  Hence  no  stranger  to  the  action  can  obtain 
an  order  quashing  the  execution.^^     To  this  rule  an  ex- 

20  Bu.'U  V.  Buell,  92  Cal.  393. 

21  Duncan  v.  Brown,  15  S.  C.  414. 
21!  BueU  V.  Bu(>ll.  92  Cal.  393. 

23  Bonnell  v.  Nocly.  43  111.  2SS;  Fiske  v.  T.amoroanx,  4S  Mo.  523; 

GouTt-rnour  v.  Warner.  2  Sand.  G24;  Oakley  v.  Becker,  2  Cow.  4ri4; 

Ilowland  v.  Kalph.  3  Johns.  20;  Frink  v.  Morrison.  13  Abb.  Vr.  80; 

Perrin  v.  Bowes,  5  U.  C.  L.  J.,  O.  S.,  13S;     Wallop  v.  Scarburgh,  5 

Vol.  I.-19 


§  76  QUASHING  WRITS  OF  EXECUTION.  290 

ception  probably  exists  in  favor  of  persons  who,  though 
not  parties  to  the  action,  must  necessarily  be  preju- 
diced by  the  enforcement  of  the  writ,  such  as  subse- 
quent purchasers,  lienholders,  and  execution  or  attach- 
ment creditors.  They  may  not  move  to  vacate  the  writ 
for  the  purpose  of  taking  advantage  of  an  error  in  form 
or  any  other  irregularity  not  of  a  substantial  character; 
but  if  the  writ  as  issued  must  prejudicially  affect  them, 
and  this  result  could  not  have  followed  a  writ  issued  in 
the  proper  form  or  for  the  proper  amount,  then  per- 
sons thus  claiming  under  the  defendant  should  have 
the  right  to  have  the  writ  quashed  to  the  extent  that  it 
erroneously  injures  them.^*  Application  to  quash  a 
writ  must  always  be  presented  to  the  court  whence  it 
issued.  One  court  will  not  entertain  a  motion  to  set 
aside  the  process  of  another  court.^^ 

§  76.    The  Time  Within  Which  a  Motion  to  Quash  an 

execution  may  be  made  appears  to  have  no  limit. 
The  motion  may  be  made  and  granted  after  the  writ 
has  been  returned  fully  executed,^^  except  in  Texas, 
where  such  motion  appears  not  to  be  entertained  after 
the  return  day,  and  the  actual  return  of  the  writ.'''  If 
the  writ  was  void,  so  that  no  delay  or  acquiescence  on 
the  part  of  the  defendant  could  give  validity  to  pro- 
ceedings taken  under  it,  doubtless  the  court  wherein  it 

Gratt.  1;  Morton  v.  Gahona,  70  Ga.  569;  Hanika's  Estate,  138  Pa, 
St.  330.  21  Am.  St.  Rep.  1)07. 

24  .Taffiay  v.  Saussinan.  52  Hun.  5G1.  5  N.  Y.  Supp.  629. 

25  Pettus  V.  Elgin,  11  Mo.  411;  McDonakl  v.  Tillman,  17  Mo.  6('3; 
Nelson  v.  Brown,  23  Mo.  13;  Mellier  v.  Bartlett,  89  Mo.  134;  Arthurs 
V.  Villeres,  43  La.  Ann.  414;  Scrutehfield  v.  Sauter,  119  Mo.  61.5. 

28  Pinckney  v.  Hegeman,  .53  N.  Y.  31 ;  Page  v.  Coleman,  9  Port. 
275;  Isaacs  v.  The  Judge,  .5  Stew.  &  P.  408. 

2  7  Meader  Co.  v.  Aringdale,  58  Tex.  447;  Berry  v.  Perry,  81  Ala. 
103. 


129.1  QUASHING  WRITS  OF  EXECUTION,  §  77 

issued  may,  regardless  of  the  lai)se  of  time,  vacate  it  on 
the  same  principle  that  it  wouhl  strike  from  its  records 
a  void  judj^nient.  ^^'ll(*^e,  however,  the  writ,  if  per- 
mitted to  stand,  may  support  sales  made  by  virtue  of  it, 
and  such  sales  have  been  made  and  conveyances  exe- 
<'uted  thereunder,  by  virtue  of  which  strangers  to  the 
action  have  become  interested,  the  courts  will,  as  a 
general  ruh^,  not  interpose,  but  will  leave  the  defend- 
ant and  those  claiming  under  him  to  assert  any  claim 
they  may  have  by  some  independent  action  or  suit.^** 
While  courts  have  the  power  to  quash  executions  at 
any  time,  they  are  not  disposed  to  exercise  this  power 
in  behalf  of  the  negligent.  They  require  motions  in 
ordinary  cases  to  be  made  and  prosecuted  with  dili- 
gence; and  where  the  error  complained  of  consists  in  a 
mere  irregularity,  any  considerable  delay  on  the  part  of 
the  applicant  will  be  treated  as  a  waiver  of  the  irregu- 
larity, and  an  irrevocable  renunciation  of  liis  right  to 
ijuash  the  writ."'*^ 

§  77.  Grounds  for  Quashing.— We  have  already 
endeavored  to  show  the  time  and  circumstances  in 
which  executions  may  properly  issue;  ^"  and  have  at 
the  same  time  attempted  to  show  the  consequences  of 
any  irregularity  in  such  issuing  when  the  writ  was,  by 
the  parties,  permitted  to  stand.  In  case,  however,  that 
the  party  against  whom  the  writ  runs  seeks  to  avail 
himself  of  its  erroneous  issuance,  he  may  do  so  by  a 

28  Day  V.  Graham,  1  Gilm.  435;  Jenkins  v.  Merrlweather,  lOl)  111. 
C47. 

-9  Henderson  v.  Henderson,  GO  Ala.  556;  Bristow  v.  Payton,  2  T. 
B.  Mou.  91.  15  Am.  Dec.  134;  Frean  v.  Garrett,  24  Hun,  161;  Bow- 
man V.  Talman.  2  Robt.  633;  Hapgood  v.  Goddard,  26  Vt.  401;  Mc- 
Kinney  v.  Scott,  1  Bibb.  155;  Murphrey  v.  W'ood,  2  Jones,  63;  De 
Crano  v.  Mussdniau,  27  Leg.  Int.  358;  Berry  v.  Perry,  81  Ala.  103- 

30  See  Chapter  II. 


§  77  QUASHING  WRITS  OF  EXECUTION.  292 

motion  to  quash;  and  such  motion,  at  least  when 
promptly  made,  will  ordinarily  be  granted.  Hence,  a 
motion  to  quash  will  prevail  Avheu  the  judgment  on 
which  it  issued  was  satisfied ,^^  or  the  writ  was  issued 
by  the  clerk  without  the  direction  of  the  proper  author- 
ity,^- or  before  the  time  for  issuing  had  arrived,'^^  or 
contrary  to  the  agreement  of  the  parties,^^  or  after  a 
year  and  a  day  without  reviving  the  judgment,^^  or 
when,  in  the  absence  of  such  revivor,  the  writ  was 
tested  after  the  death  of  a  sole  plaintiff,^^  or  of  a  sole 
defendant,^"  or  after  the  marriage  of  a  female,  she  be- 
ing sole  plaintiff,^^  or  when  issued  after  the  defendant 
had,  in  bankruptcy  proceedings,  been  discharged  from 

31  McHeiiiT  V.  Watkins.  12  111.  233;  Russell  v.  Hugunin,  1  Soam. 
502,  33  Am.  Dtc.  423;  Adams  v.  Siuallwood,  8  Jones,  2.j8;  Barnes  v. 
Robinson.  4  Yers.  ISO;  Smock  v.  Dade,  5  Rand.  639,  IG  Am.  Dec. 
TsO;  Thompson  v.  Eaughliu,  91  Cal.  313;  Conley  v.  Maher,  93  Ga. 
781;  Sandlierj?  v.  Fapiueau,  81  111.  440;  Wyatt  v.  Fromme,  70  Mo. 
App.  013:  Scutt  V.  Phillips,  140  Pa.  51;  Howell  v.  Thomason,  34  W. 
Va.  794. 

3-  Shackelford  v.  Apperson,  6  Gratt.  451. 

33  Allen  V.  Poi-tlaud  Stage  Company,  8  Greenl.  207;  Bartlett  v. 
Stinton,  L.  R.  1  C.  P.  483;  3  L.  J.  Com.  P.,  N.  S.,  238;  Blashfield  v. 
Smith,  27  Hun,  114;  Knights  v.  Martin,  155  111.  480;  Lowther  v. 
DaA'is,  33  AV.  \ii.  132;  Folan  v.  Folan.  59  Me.  506. 

3  4  Feagley  v.  :Norbeck,  127  Pa.  St.  238. 

36  Bacon  V.  Red,  27  Miss.  409;  Bolton  v.  Lansdown,  21  Mo.  39f>; 
Azcarati  v.  Fitzsimmons,  3  Wash.  C.  O.  134;  Lytle  v.  Cinn.  Manf. 
Co.,  4  Ohio,  459;  Reynolds  v.  Corp,  3  Caines,  270;  Blayer  v.  Baldwin, 
2  Wils.  82;  Sympson  v.  Gray,  Barnes^  197;  Noe  v.  Conyers,  6  J.  J. 
Marsh.  514;  Goodtitle  v.  Badtitle,  9  Dowl.  P.  C.  1009;  Moore  v.  Bell, 
13  Ala.  409;  Trail  v.  Snouffer,  6  Md.  308;  State  v.  Brookover,  38  W. 
Va.  141. 

30  Wingate  v.  Gil  son,  1  Mnrph.  492;  Harwood  v.  Murphy,  1  Green 
(N.  J.),  193;  Morgan  v.  Tayler,  38  N.  .1.  L.  317. 

37  Bentley  v.  Cummins,  4  Eng.  487;  Davis  v.  Helm,  3  Smedes  &  M. 
17;  Harrington  v.  O'Reilly,  9  Smedes  &  M.  216,  48  Am.  Dec.  704.  A 
fieri  facias  issued  at  two  o'clock  P.  M.  was  set  aside  on  showing 
that  the  defendant  died  at  eleven  o'clock  A.  M.  of  the  same  day. 
Chick  V.  Smith,  8  DoavI.  P.  C.  ,337;  4  .Tur.  86. 

88  Johnson  v.  Parmley,  17  Johns.  271. 


*JU3  QUASHINC;  WILITS  OF  EXECUTION.  §  77 

all  fiii'llicr  liability  iindor  the  judgment; '"*  but  not 
when  defendant  had  merely  tendered  the  plaiutill"  the 
amount  of  tho  judgment,  wKliout  bringing  the  money 
into  eouit.'^*  An  execution  may  also  bequashed  because 
it  states  a  dilTeivnt  rate  of  interest  from  that  stated  in 
the  judgment,^*  or  varies  from  the  judgment  in  some 
other  respect,'*^  as  when,  being  in  replevin,  it  omits  the 
clause  permitting  the  ollicer  to  accept  the  return  of  the 
property,^^^  or  is  against  defendant  personally  when  it 
ougiit  to  be  against  him  as  surviving  trustee,""  or  is 
against  two  defendants  for  amounts  for  which  they  are 
severally  liable,  or  is  issued  by  a  person  acting  as  clerk 
without  any  authority  to  so  act,*^  or  where  some  mo- 
tion is  pending  which  has  the  effect  to  stay  execution,*** 
or  because  it  does  not  name  the  person  whose  property 
is  to  be  seized. "*' 

The  grounds  for  quashing  executions  which  we  have 
considered  in  this  section  are  of  a  substantial  charac- 
ter, and  some  of  them,  if  maintained,  extend  beyond  the 
vacating  of  the  writ  in  question  and  show  that  no 
further  writ  should  ever  be  issued.  Thus,  if  it  is 
claimed  that  the  Avrit  assailed  issued  when  the  court 
had  no  longer  any  authority  to  enforce  the  judgment, 
the  sustaining  of  the  motion  is  in  effect  an  adjudica- 

39  r.inn  V.  Hamilton,  34  X.  ,T.  L.  305;  Davis  v.  Shaploy.  1  Barn.  & 
Ado'..5!; Barrow  v.  I'oile,  1  Barn.  &  Adol.  (>29;  Ilumplircys  v.  Kniglit, 
6  Biui,'.  .".72;  Alcott  v.  Avery,  1  Barl>.  Cli.  347;  Millious  v.  Aicardi,  51 
AlA.  .5!M;  Ilerrlidi  v.  McDouald.  80  Cat.  472. 

*■•  Sliuiuaktr  v.  Niclu^ls.  ti  Gratt.  ."92. 

♦1  FowHces  V.  Puppeiilioinier.  4  Lea,  422. 

*-  Dawes  v.  I'aw(S.  43  Atl.  984  (N.  J.  L.). 

*i  Diirnan  v.  Benliam  etc.  Co.,  52  S.  W.  38  (Tenn.). 

**  Alser  V.  Conner.  17  Hun.  4.'j. 

♦3  Taney  v.  Woodinansee,  23  W.  Va.  709. 

«6  Danii'Isnn  v.  Northwestern  F.  Co..  55  Fed.  Rep.  49. 

•*7  Uaynes  v.  Kicliardsoii,  01  (Ja.  390. 


§  78  QUASHING  WRITS  OF  EXECUTION.  2D4 

tion  that  no  writ  can  ever  issiio,'*^  while,  on  the  other 
hand,  if  the  ground  of  the  motion  is  that  the  writ  issued 
without  first  aslving  leave  of  the  court,  the  quashing  of 
the  writ  must  leave  the  plaintiff  at  liberty  to  make 
proper  application;  and  perhajis  the  court  in  hearing 
the  motion  to  quash  may  deny  it  on  the  ground  that  if 
leave  had  been  sought  it  must  necessarily  have  been 
granted.'*'* 

If  the  ground  of  a  motion  to  quash  or  recall  a  writ 
is  that  the  judgment  has  been  satisfied  or  that  the 
defendant  has  been  relieved  by  his  discharge  in  bank- 
ruptcy or  insolvency  proceedings,  and  the  facts  are 
conceded  or  established  by  record  evidence,  there  can 
be  no  impropriety  in  the  court's  proceeding,  but  if,  on 
the  other  hand,  a  substantial  issue  of  fact  is  presented, 
it  is  manifest  that  the  parties  should  not  be  required  to 
try  it  upon  a  mere  motion,  in  the  hearing  of  which  there 
can  be  no  jury  trial  and  rarely  any  opportunity  for  the 
oral  examination  and  cross-examination  of  witnes.ses. 
"Where  the  judgment  is  alleged  to  have  been  satisfied 
in  fact,  the  court  may  doubtless  entertain  a  motion  to 
have  the  satisfaction  entered  of  record,  and  may  grant 
such  motion  and  quash  any  outstanding  execution,  if 
the  facts  are  alleged  or  clearly  established.  If,  how- 
ever, the  facts  are  not  conceded,  and  an  issue  of  fact 
is  presented,  the  court  ought  not  to  d(^termine  such 
issue  upon  motion,  but  should  leave  the  parties  at  lib- 
erty to  try  it  in  some  appropriate  suit."  ®* 

§  78.    Quashing  for  Errors  in  Form.— The  quashing 

of  executions  which   were   authorized   to  be  issued  at 

4  8  Bnell  V.  Buoll,  92  Cal.  393;  Dorland  v.  Hansou,  81  Cal.  202,  15 
Am.  St.  Rep.  44. 

4«  Frean  v.  Garrett,  24  Iliin,  161. 
60  Freeman  on  Judgments,  §  4S0.  - 


205  QUASHING  WRITS  OF  EXECUnON.  §  78 

tho  timo  wlion  tlicv  were  sued  out,  but  which  are  not 
in  propor  form,  is  a  question  upon  which  the  practice 
of  the  courts  is  variant.  I'or  substantial  iiTegularities 
in  the  form  of  tlie  writ,  such  as  are  of  so  serious  a 
character  as  to  be  incurable  by  amendment,  there  can 
be  no  doubt  of  the  propriet3'  of  setting  aside  the  whole 
writ.  But  what  irregularities  are  substantial  in  this 
sense,  and  to  this  extent,  is  something  about  which  the 
courts  do  not  usually  agree,  as  we  have  shown  in  the 
chapter  on  the  form  of  original  executions.  The  vast 
majority  of  writs  liable  to  objection  for  matters  of  form 
are  capable  of  being  set  right  by  comparison  with  the 
judgment.  The  informality  is  usually  a  clerical  mis- 
prision for  whicli  the  parties  are  not  justly  blamable, 
and  which  is  not  so  culpable  that  it  ought  to  be  fol- 
lowed by  any  severe  penalty.  In  all  probability,  it 
has  not  injnn  d  the  complainant;  and,  if  capable  of 
inflicting  such  injury,  its  power  to  do  so  may  be 
destroyed  by  an  amendment  making  it  conform  to  the 
judgment.  Numerous  cases  may,  no  doubt,  be  found 
in  the  reports,  in  which,  for  harmless  informalities  or 
variances,  writs  have  been  quashed.  The  decisions, 
however,  show  a  tendency,  strong  at  the  first  and  still 
increasing,  to  correct  rather  than  to  destroy;  to  re- 
spond to  a  motion  to  quash  by  refusing  such  motion, 
and  ordering  the  writ  to  be  so  amended  as  to  free  it 
from  all  objection,  ^^  whenever  this  can  be  done  by 
reference  to  the  record.  There  are  cases  which  seem  to 
afiBrm  the  general  proposition  that  an  execution  will  be 

61  Newnliani  v.  Law.  .5  Term  Hop.  ~u~:  Sliaw  v.  ^Maxwell.  G  Term 
Bep.  4.")0;  Mouys  v.  Leake,  8  Term  Rep.  41G.  note  a:  Stevenson  v. 
Castle.  1  Chitty.  .340;  Saunders  v.  Ky.  Ins.  Co.,  4  Bibb.  471;  Mitch- 
ell V.  Chesnut,  31  Md.  521:  Goodman  v.  Wallver.  38  Ala.  142:  Deloach 
T.  State  Panic.  27  Ala.  437:  Thompson  v.  Roiidurant,  15  Ala.  34G.  50 
Am.  Dec.  13G;  Sheppard  v.  Malloy,  12  Ala.  5G1. 


§  78  QUASHING  WRITS  OF  EXECUTION.  296 

quashed  for  a  variance  between  it  and  the  judgment. ^^ 
In  Kentucky,  when  an  execution  was  issued  for  too 
small  an  amount,  it  was  said  that  the  projjer  remedy 
of  the  plaintiff  was  by  motion  to  quash.^*  No  doubt 
there  are  other  reported  cases,  in  which  the  proposi- 
tion that  an  execution  may  be  quashed  because  for 
either  too  large  or  too  small  ^*  an  amount  finds  encour- 
agement. But  the  preponderance  of  authority,  both 
English  and  American,  negatives  this  proposition,  and 
establishes  the  rule  that  for  variance  in  amount  an 
execution  may  be  corrected  by  the  record,  but  will  not 
be  entirely  set  aside. ^^  Of  course,  the  refusal  of  the 
courts  to  quash  writs  because  of  some  irregularity 
therein  and  the  directing  amendments  instead  is  based 
upon  the  ground  that  the  irregularity  has  been  of  no 
injury  to  the  moving  party  and  that  it  is  unjust  to  pun- 
ish the  plaintiff,  and  to  deprive  him  of  some  right,  be- 
cause of  an  error  of  an  officer  in  issuing  the  w^rit,  to 
which  the  jdaintiff  did  not  contribute.  Where,  on  the 
contrary,  it  appears  probable  that  the  error  has  prej- 
udiced the  moving  party,  relief  should  be  granted  him, 
especially  where  to  do  so  will  work  no  substantial 
wrong  to  the  plaintiff.  Thus,  property  may  have  been 
sold  for  a  sum  so  far  below  its  market  value  as  to  jus- 

62  Noe  V.  Lawless,  6  J.  J.  Marsh.  .^.14;  Reese  v.  Burts,  30  Ga.  .505; 
Newman  v,  Willi  tts,  60  111.  519;  Flint  v.  Phipps,  20  Or.  340,  23  Am. 
St.  Rep.  124. 

63  Brown  v.  .Julian.  5  .T.  .T.  Marsh.  312. 

64  Coltbolrl  V.  Childer,  4  Scott  N.  R.  GTS;  4  Man.  &  G.  62;  1  Dowl., 
N.  S..  726;  Webber  v.  Iliitchins,  8  Mees.  &  W.  319;  1  Dowl.,  N.  S..  95. 

65  Mouys  V.  Leake,  8  Term  Rep.  410,  note  a;  Kin.iJC  v.  Harrison.  l."» 
East,  615;  Murphy  y.  Lewis,  Hemp.  17;  Todd  v.  McClanahan's  Heiis, 
1  J.  J.  Marsh.  356;  Knight  v.  Applegate's  Heirs,  3  T.  B.  Mon.  3:18; 
Commonwealth  v.  Hamilton,  4  T.  B.  Mon.  133;  Sheppard  v.  Malloy, 
12  Ala.  .501;  Hunt  v.  Loucks,  38  Cal.  376,  99  Am.  Dec.  464;  Ilollings- 
worth  V.  Floyd,  2  Har.  &  G.  87;  Tilby  v.  Best,  10  East.  103;  Bogle 
V.  Bloom,  36  Kan.  512;  St.  Louis  etc.  R.  Co.  v.  Rierson,  38  Kan.  359. 


297  QUASHING  WRITS  OF  EXECUTION.  §  79 

tify  tlio  infercnco  that  the  biddiiij;  may  have  been  de- 
pressed by  the  fear  that  the  irrej^uhnity,  ai)i)arent  from 
an  inspection  of  the  writ  and  jud^ni  iit,  would  iiiii>air 
the  purchaser's  title,  and,  where  such  is  the  case,  the 
writ  should  be  (plashed  rather  than  amended.''"  In 
Texas,  an  error  in  the  style  of  the  writ  has  been  spoken 
of  as  a  possible  ground  for  (juashinj^-,  but  no  positive 
opinion  was  required  or  given.''  In  Kentucky,  an  exe- 
cution in  detinue  may  be  quashed  when  it  is  for  the 
value  of  the  properly,  instead  of  being  for  the  return  or 
for  the  value  in  ease  a  return  cannot  be  had.''^  Execu- 
tions have  also  been  (]ui;shed  for  varying  from  the 
judgment  in  being  against  a  party  not  named  in  the 
judgment,'^'*  or  in  incorrectly  stating  the  name  of  the 
plaintiff.''**  An  erroneous  taxation  of  costs,  or  an  er- 
roneous indorsement  on  an  execution,  furnishes  no 
ground  for  quashing  the  writ.  The  former  error  may 
be  corrected  on  motion  to  r(4ax  costs,"^  and  the  latter 
by  quashing  the  indorsement.*^^  An  execution  not  sub- 
scribed by  the  plaintiff  nor  by  his  attorney,  where  the 
law  requires  it  to  be  subscribed  by  one  or  the  other, 
may  be  quashed.*^^ 

?  79.    In    Georgia,    by    Affidavit    of    illegality. — The 
judiciary  act  of  the  state  of  Georgia  of  the  year  1799 

B«  Flint  V.  Pliipps.  20  Or.  340.  23  Am.  St.  Rep.  124. 

BT  Tort  is  V.  P;irk(M-.  8  Tox.  2.3.  58  Am.  Dec.  95. 

8^  Boyd  V.  Williauis,  5  .1.  .1.  Marsh.  5G. 

89  Morrel  v.  Baruer,  4  Litt.  10;  Treadwell  v.  Herndon.  41  Miss. 
38:  (Irayham  v.  Rol)erds,  7  Ala.  71'.);  Bridges  v.  Caldwell.  2  A.  K. 
Marsh.   195. 

60  .Jennings  v.  Pray.  S  Yerjr.  85;  Smith  v.  Kniirht,  11    Ala.  <!1^. 

61  Walton  V.  Brasliears.  4  Bibb.  IS;  Chase  v.  De  ^^■olf.  6'.>  III.  47; 
Adriance  Co.  t.  Ileiskell.  8  Ai)p.  D.  C.  240. 

«2  McGowan  v.  Hoy,  2  Dana.  347:  McDaniel  v.  .lohiistun,  llu  Ala. 
626. 

«3  Bonesteel  v.  Orvis.  23  Wis.  500,  9t>  Am.  Per.  201. 


§  79  QUASHING  WRITS  OF  EXECUTION.  29S 

makes  provisions,  "  in  all  cases  where  execution  issued 
illegally,"  by  which  plaintiff  may  make  affidavit  of 
such  illegality,  and  thereby  procure  a  suspension  of 
the  proceedings  until  the  alleged  illegality  can  be  de- 
termined by  the  court.  This  act  was  construed  to  pro- 
vide a  remedy  where  there  was  anything  illegal,  either 
in  issuing  the  execution,  or  in  subsequent  proceedings 
under  it.**^  This  was  a  forced  interpretation,  by  which 
the  word  "issued"  was  given  an  effect  equivalent  to 
the  Avords  "issued,  or  is  proceeding."  The  statute  has 
since  been  amended  in  such  a  manner  that  it  no  longer 
requires  judicial  aid  to  extend  its  provisions.^^  The- 
present  code  declares  that  when  an  execution  against 
the  property  of  any  person  shall  issue  illegally,  or  shall 
be  proct^eding  illegally,  and  such  execution  shall  be 
levied  on  property,  he  make  oath  in  writing  stating- 
the  causes  of  the  illegality,  and  deliver  it  to  the  sheriff 
or  other  officer  together  with  a  bond  and  good  security 
for  the  forthcoming  of  the  property.  When  the  levy 
shall  have  been  made  and  the  affidavit  and  bond  deliv- 
ered to  the  officer,  it  becomes  his  duty  to  suspend 
further  proceedings,  and  to  return  the  execution,  affi- 
davit, and  bond  to  the  next  tt^rm  of  the  court  from 
which  the  writ  issued,  which  court  shall,  at  the  first 
term  thereof,  unless  the  plaintiff  or  his  attorney  de- 
sires to  controvert  facts  contained  in  the  affidavit, 
determine  the  claim  of  illegality;  but  if  the  plaintiff 
desires,  he  may  controvert  the  facts  stated  in  the  affi- 
davit, in  which  case  an  issue  shall  be  joined,  to  be  tried 
by  the  jury  at  the  same  term,  unless  good  cause  is 
shown  for  a  continuance.*'"^     The  proceeding  by  affi- 

«<  Robl  on  V.  Banks.  17  Ga.  211. 

cs  Code  of  Georgia,  sees.  3G14-.'i621,  revised  by  Irwin. 

«6  Code  of  Georgia,  ed.  1805,  sees.  473U  to  4738. 


299  QUASHING  WRITS  OF  EXECUTION.  §  79 

davit  of  illegality  amounts  substantially  to  a  suit  or 
action.  The  allidavit  itself  must  aver  the  facts  re- 
quired to  support  the  relief  sought  with  as  much  direct 
ness  and  particularity  as  would  be  required  in  a  com- 
plaint in  an  action  at  law  or  a  bill  in  a  suit  in  chancery. 
Indeed,  the  particularity  required  of  the  allidavit  is 
greater  than  that  exacted  of  a  complaint  or  bill.  In 
either  of  these  it  would  be  sufficient  to  make  a  general 
statement  of  any  ultimate  fact,  as  that  the  judgment 
on  which  the  writ  issued  had  been  paid;  but  in  an  affi- 
davit the  facts  themselves  must  be  disclosed,  so  as  to 
enable  the  court  to  determine  therefrom  whether  a 
cause  for  staging  or  quashing  the  writ  exists.*'''  If 
the  statement  is  general  or  consists  of  a  mere  conclu- 
sion of  law,  a  demurrer  to  the  affidavit  should  be 
sustained.****  The  proceeding  by  illegality  cannot  reach 
any  proceedings  prior  to  the  judgment,**^  unless  the 
court  did  not  acquire  jurisdiction  of  the  defendant.'^** 
It  may  question  the  judgment  as  void,'^*  but  cannot 
attack  it  on  the  ground  that  the  court  erred  in  some 
matter,  as  in  granting  relief  not  sustained  by  the  plead- 
ings or  findings,  or  in  committing  some  other  error,  the 
remedy  for  which  is  by  appeal  or  some  other  revisory 
proceeding.'^  The  aitidavit  must  contain  all  the 
grounds  of  illegality  of  which  the  defendant  intends  to 
complain.    No  amendment  will  be  allowed,''^^  except  for 

G7  Torry  v.  Ainorioiis  Bank,  77  Ga.  528;  Bowou  v.  Groover,  77  Ga. 
12G;  Bakor  v.  Ackonuan.  77  Ga.  89:  East  Teun.  etc.  R.  Co.  v.  Tlieus , 
91  Ga.  ?>\):  Briuson  v.  Birge.  102  Ga.  802. 

6«  Bakor  v.  Ackernian,  77  <;a.  89;  Burnett  v.  Foudie.  77  Ga.  550. 

«o  Manjiliam  v.  Reod,  11  Ga.  l.*?7;  Emory  v.  Smith.  51  Ga.  323; 
Mayor  v.  Trustees,  7  Ga.  204;  Swinny  v.  Watkins.  22  Ga.  570. 

70  Parker  v.  Jenninjis,  2(;  Ga.  140;  Brown  v.  Gill,  49  Ga.  5-19. 

71  Planters'  Bank  v.  Berry,  91  Ga.  204. 

72  Bowen  v.  Groover.  77  (ia.  120;  Gritlin  v.  Frick.  97  Ga.  219; 
Douglas  V.  Singer  M.  Co.,  102  Ga.  500;  Dooly  v.  Miles,  101  Ga.  797. 

"  Hurt  V.  Mason,  2  Kelly,  3tj7. 


§  79  QUASHING  WIUTS  OF  EXECUTION.  300 

the  purpose  of  inserting  such  new  grounds  as  the  de- 
fendant by  his  oath  shows  were  not  within  his  knowl- 
edge when  the  original  affidavit  was  made.'^  If  he 
files  a  second  or  amended  affidavit,  he  must  show 
therein  that  the  facts  souglit  to  be  disclosed  by  it  and 
not  stated  in  the  original  were  not  known  to  him  when, 
it  was  filed,  and,  further,  that,  before  making  the  first 
affidavit,  he  had  used  due  and  reasonable  diligence  to 
discover  theniJ^  The  jurat  to  the  affidavit  may  be 
amended  by  adding  the  official  designation  of  the  officer 
who  administered  the  oath."^**  The  affidavit  must  be 
made  by  the  party  upon  whose  person  or  property  the 
writ  is  being  executed,  or  by  his  agent  or  attorney.  It 
cannot  be  made  by  a  codefendant,  in  his  own  name, 
when  neither  he  nor  his  property  has  been  molested  by 
the  writ.*^'  It  cannot  be  made  upon  information  and  be- 
lief, but  must,  though  made  by  representatives  of  a  de- 
ceased person,  be  positive.  If  it  states  that  its  aver- 
ments are  true  to  the  best  of  deponent's  knowledge  and 
belief,  it  is  fatally  defective,  though  he  also  states  that 
it  is  based  upon  the  testimony  of  reliable  witnesses.'^* 
The  applicant  must  also  give  the  bond  exacted  by  the 
statutes,  or  disclose,  as  a  reason  for  not  doing  so,  some 
circumstance  designated  therein  as  excusing  the  giving 
of  the  bond.'^^ 

The  grounds  upon  which  the  defendant  can  prevail, 
when  his  objections  are  directed  to  the  issuing  of  the 
writ,  seem  to  be  none  other  than  would  be  sufficient  in 

74  Higgs  V.  IIusoii.  8  Ga.  317. 

75  Bui-uett  V.  Fouolip,  77    Ga.  550;  Baker    v.  Smith,  91    Ga.  142; 
BiiidfT  V.  Ilagsdale.  100  Ga.  400. 

76  Smith  V.  Walker,  93  Ga.  252. 

77  Van  Dyke  v.  Besser,  34  Ga.  26a 

78  Sprinz  v.  Vannucki.  80  Ga.  774. 

79  Griffiu  V.  Lacourse,  31  Fla.  125;     Shannon  v.  Vincent,  70  Ga. 
1G3. 


301  QUA.SI1IN'(;   WKITS  OF  EXECUTION.  S  80 

other  states  under  an  ordinary  motion  to  quash  the 
writ.  Thus  an  aftidavit  of  iUegality  cannot  be  sus- 
tained because  of  an  immaterial  variance,^*'  nor  be- 
cause the  writ  was  si<;Tied  by  the  deputy  clerk  and 
witliont  affixing  seal  of  the  court.**^  But  the  affidavit 
of  iUegality  reaches  one  error  not  to  be  remedied  by  a 
motion  to  quash;  namely,  an  error  committed  by  the  of- 
ficer in  the  execution  of  the  writ.'^* 

§  80.    The  Consequences  of  an  Order  Quashing  a  writ 

may  be  considered,  lirst,  with  reference  to  the  plaintiif 
and  his  attorneys;  and  second,  wuth  respect  to  the  offi- 
cers who  have  acted  under  the  authority  of  the  writ, 
and  to  strangerswho  have  in  good  faith  made  purchases 
and  paid  money  at  sales  had  thereunder.  If  an  uncon- 
ditional order  is  given  quashing  an  execution,  the  plain- 
tiff and  his  attorney  are  left  in  no  better  a  position 
than  if  the  writ  had  never  issued.  If  they  have  or 
either  of  them  has  become  purchasers  of  property  there- 
under, an  essential  muniment  of  their  title  is  obliter- 
ated, and  the  purchase  necessarily  falls  for  want  of 
support.  For  most  purposes  they  must  be  regarded  as 
never  having  had  any  title,  and  hence  they  are  liable 
to  account  for  the  rents  received  by  them,  or  to  answer 
for  the  injuries  suffered  by  the  defendant  through  their 
taking  and  withholding  possession  from  him  for  the 
period  prior  aswell  as  subsequent  tothe  quashing  of  the 
writ.*^'*  If  they  have  seized  upon  ])roperty,  or  taken  the 
defendant  in  execution,  their  act  can  no  longer  be  jus- 

ROMitclioU   V.    rriiHup,   I'.t   Ga.   .ITO. 

61  Dever  v.  Akin.  40  Ga.  421). 

82  Eobison  v.  Banks,  17  Ga.  211;  Force  v.  Daliloiicfra  T.  &  L.  Co., 
22  Ga.  86. 

S3  McCaulln  v.  Mnrpliy,  SG  Ga.  475;  Audersou  v.  Sloaue,  72  Wis. 
666,  7  Am.  St.  Rep.  S85. 


§  so  QUASHING  WRITS  OF  EXECUTION.  302 

tified,  and  tliey  may  be  pursued  as  trespassers.®*  With 
respect  to  officers,  we  believe  the  rule  is  of  universal 
operation  that  they  may  justify  under  a  writ  regular  on 
its  face,  and  that  the  quashing  of  a  writ  will  not  oper- 
ate retrospectively  so  as  to  make  them  trespassers  for 
acts  previously  done  under  its  authority.  When  sales 
have  been  made  under  execution  to  bona  fide  purchas- 
ers, the  duty  as  well  as  the  inclination  of  the  court  is  to 
protect  them,  and  a  motion  to  quash  the  execution  for 
any  mere  error  or  irregularity  will  be  denied.®^  But 
even  should  the  motion  be  granted,  its  operation  seems 
not  to  extend  to  sales  made  to  such  purchasers;  and  for 
the  purpose  of  supporting  such  a  sale,  the  quashed  writ 
retains  its  original  vitality.®* 

84  Freeman  on  Judgments,  sec.  104  b;  Turner  v.  Fel^ate,  1  Lev. 
9.5;  Parsons  v.  Loyd,  3  Wils.  341;  2  W.  Black.  845;  Chapman  v. 
Dyett,  11  Wend.  31,  25  Am.  Dec.  598;  Kerr  v.  Mount,  28  N.  Y.  659; 
Hayden  v.  Shed,  11  Mass.  500;  Codrington  v.  Lloyd,  8  Ad.  &  B.  44y, 
3  Nev.  &  P.  442,  1  W.  W.  &  H.  358,  2  Jur.  593;  Barker  v.  Braham,  3 
Wils.  368;  Young  v.  Bircher,  31  Mo.  136,  77  Am.  Dec.  038;  Sanders 
V.  Ruddle,  2  T.  B.  Mon.  139,  15  Am.  Dec.  148. 

^5  Bryan  v.  Berry,  8  Cal.  130;  Day  v.  Graham,  1  Gilm.  435. 

86  Doe  V.  Snyder,  3  Hoav.  (Miss.)  66,  32  Am.  Dec.  311;  COx  v.  Nel- 
son, 1  T.  B.  Mon.  94,  15  Am.  Dec.  89;  Adamson  v.  Cummins,  5  Eng. 
545;  Chambers  v.  Stone,  9  Ala.  261. 


303  BXECUTION  ON  DORMANT  JUDGMENTS.  §  81 


CHAPTER  VIIT. 

PROCEEDINGS  TO  OBTAIN  EXECUTION  ON  DORMANT 
JUDGMENTS. 

FIRST.-BY, SCIRE  FACIAS. 

§  81.  Object  and  dofiuitiou  of  the  -writ. 

§  82.  In  what  actious  it  may  issue. 

§  83.  VV'heu  uetessary  and  consequences  of  not  prosecuting. 

§84.  Change  in  the  parti(>s  other  than  hj'  death. 

§  8.").  Change  in  parlies  occasioned  by  death. 

§  SG.  Parties  phiintitT. 

§  87.  Parties  defendant. 

§  88.  Form  of  the  writ,  and  amendments  thereto. 

§  89.  Service  of  the  writ. 

§  90.  Proceedinj^s  on  return  of  the  writ;  defenses  recelTed. 

§  91.  Time  in  whicli  the  writ  must  be  sued  out. 

§  92.  Irre^ruhir  writs. 

§  92a.  Judj;nieut  upon. 

§  93.  Second  scire  facias. 

§  93a.  The  effect  of  a  judgment  of  revivor, 

f  94.  Form  of  execution  on  scire  facias. 

SECOND-BY  MOTION. 

§  95.    :Motion  and  notice  as  a  substitute  for  scire  facias. 

§  9G.     On  death  of  one  of  the  parties. 

§  97.    On  judiiment  dormant  by  lapse  of  time. 

§  81.  Object  and  Definition. —Before  a  judgment  is 
either  satisfied  by  payment  or  barred  by  lapse  of  time, 
it  may  become  temporarily  inoperative  so  far  as  the 
right  to  issue  execution  is  concerned,  and  so  continue 
until  something  is  done  by  which  such  right  is  revived. 
In  this  condition  it  is  usually  called  a  dormant  judg- 
ment. This  dormancy  in  judgments  was,  at  the  com- 
mon law,  usually  created  either  by  a  change  in  the 
parties  plaintiff  or  defendant,  or  by  the  lapse  of  time 


§  SI  EXECUTION  ON  DORMANT  JUDGMENTS.  304- 

witliout  the  issuing-  of  execution.  "Where  any  new 
person  (that  is,  one  not  originally  party  to  the  judg- 
ment) is  to  be  charged  or  benefited  by  the  execution, 
orwhere  more  than  a  year  and  a  day  have  elapsed  since 
the  signing  of  judgment,  and  that  delay  has  not  been 
caused  by  the  party  chargeable,  new  measures  become 
necessary  before  execution  can  be  proceeded  in."* 
There  were  also  cases  in  which  execution  was  to  be 
issued  in  certain  contingencies  only,  and  in  which  it 
became  necessary  to  establish  the  existence  of  the  con- 
tingency before  the  writ  could  be  regularly  sued  out. 
So  the  judgment  might  have  been  satisfied  through 
fraud  or  mistake,  or  by  an  extent  upon  property  not 
belonging  to  the  defendant,  and  it  might  therefore  be 
necessary'  to  set  aside  the  apparent  satisfaction  and  ob- 
tain leave  to  issue  further  execution.  When  from  any 
cause  it  became  necessary  to  apply  to  a  court  for 
a  revivor  of  the  right  to  issue  execution,  the  remedy 
of  the  plaintiff  was  by  scire  facias.  According  to  Mr. 
Bingham's  definition,  "a»  scire  facias  is  a  judicial  writ, 
founded  on  some  matter  of  record,  and  having  for  its 
object  the  prevention  of  undue  surprise  by  interposing 
itself  as  a  warning  between  judgment  and  execution — - 
whenever  any  new  party  is  to  be  charged  or  benefited 
by  such  execution;  whenever  such  execution  is  contin- 
gent, after  judgment  on  the  existence  of  certain  circum- 
stances, to  be  first  proved  by  the  party  charging;  and 
lastly,  whenever  execution  has  been  delayed  beyond  a 
year  and  a  day  after  judgment  signed,  that  delay  not 
arising  from  the  party  charged.'' '   But  perhaps  a  bet- 

1  Bingham  on  .Judgments  and  Executions.  118:  Foster  on  Scire  Fa- 
cias,  f). 

2  Bingliam  on  .Tudgments  and  Executions.  122.     It  w.ns  formerly 
held  that  an  elegit  might  issue  after  a  year  and  a  day.     Seymour  v. 


305  EXECUTION  ON  DORMANT  JUDGMENTS.  §  si 

ter  definition  of  .scire  facias,  as  the  term  will  be  used  in 
this  chapter,  is  this:  It  is  a  writ  issued  out  of  the  court 
wherein  a  judgment  has  been  entered  ^  or  to  which  the 
record  has  been  removed,  reciting  such  judgment,  sug- 
gesting the  grounds  re(iuisite  to  entitle  plaintiff  to  exe- 
cution, and  requiring  the  defendant  to  make  known  the 
reason,  if  any  there  be,  wh}-  such  execution  should  not 
issue.'*  ''The  writ,  therefore,  presents  the  plaintiff's 
wholecase,and  constitutes  the  declaration  to  which  the 
defindant  must  plead."  ^  "It  serves  the  double  purpose 
of  a  writ  and  a  declaration,  and,  as  its  object  is  to  re- 
vive a  dormant  judgment  and  not  to  create  one  anew,  it 
isnot  an  original  process,but  a  judicial  writ.  But  while 
scire  facias  is  not  an  original  process  by  which  an  ac- 
tion is  commenced,  it  is  considered  to  be  so  far  original 
that  the  defendant  may  plead  to  it."  ®  "A  scire  facias 
to  revive  a  judgment  is  not  an  original  but  a  judicial 

Greonvill,  Carth.  2.'?3.  But  this  decision  has  since  been  overruled. 
Putland  V.  Newman,  6  Maule  &  S.  179;  Rutland  v.  Newnhan,  2  Chit. 
384;  Brown  v.  C.  &  O.  Canal  Co.,  4  Hughes,  584. 

8  A  scire  facias,  being  founded  on  some  record,  must  be  issued 
out  of  the  court  where  that  record  is.  Hence  a  scire  facias  to  obtain 
execution  on  a  jiidgment  must  issue  out  of  and  be  returnable  to  the 
court  where  the  record  of  such  judgment  is.  and  whence  the  execu- 
tion must  issue  if  tlie  plaintiff  in  tlie  scire  facias  prevails.  Walker 
V.  Wells.  17  Ga.  547.  03  Am.  Dec.  252;  Grimke  v.  Mayraut.  2  Brev. 
202;  Osgood  v.  Thurston,  23  Pick.  110;  Tindall  v.  Carsou,  1  Harr. 
(N.  J.)  1)4;  Barron  v.  Pagles,  G  Ala.  422;  Carlton  v.  Young.  1  Aiken. 
332;  Wilson  v.  Tiornan,  3  Mo.  577;  Vallance  v.  Sawyer,  4  Greenl.  62; 
Treasurer  v.  Erwin.  Brayt.  218;  2  Sellon's  Practice,  198:  Foster  on 
Scire  Facias,  19;  Dougherty's  Estate,  9  Watts  &  S.  1S9,  42  Am.  Dec. 
326;  Perkiife  v.  Hume.  10  Tex.  50;  State  v.  Brown,  41  Me.  535;  State 
V.  Kinue,  .'^9  N.  II.  120;  Gibson  v.  Davis,  22  Yt.  374. 

*  Bingliam  on  Judgments  and  Executions,  123,  124. 

6  Bouv.  Diet.,  fir.  Scire  Facias.  5;  Hicks  v.  State,  3  Pike.  313;  Blake 
V.  Dodemead,  2  Strange.  77t'>;  Ogden  v.  Smith,  14  Ala.  428;  Jueksou 
V.  Tanner,  IS  Wend.  526. 

•  Eddy  V.  Cold  well.  23  Or.  ic:;!.  37  Am.  St.  Rep.  G72. 

Vol.  I.-20 


St  SI  EXECUTION  ON  DORMANT  JUDGMENTS.  SOS 

writ,  founded  on  some  matter  of  record  to  enforce  exe- 
cution of  it;  and,  properly  speaking,  is  only  the  con- 
tinuation of  an  action  — a  step  leading  to  the  execu- 
tion of  a  judgment  alreadj'  obtained,  and  enforcing  the 
original  demand  for  Avhich  the  action  was  brought. 
It  creates  nothing  anew,  but  may  be  said  to  reanimate 
that  which  before  had  existence,  but  whose  vital  pow- 
ers and  faculties  are,  as  it  were,  suspended,  and  with- 
out its  salutary  influence  Avould  be  lost." ''  A  scire 
facias  is  sometimes  and  for  some  puri)oses  spoken  of  as 
an  action.^  But  the  object  sought  and  the  result  accom- 
plished by  a  scire  facias  to  revive  a  judgment  both 
show,  beyond  all  doubt,  that  it  is  not  a  new  action, 
but  merely  a  continuation  of  an  old  one.^  No  cause  of 
action  beyond  the  old  judgment  can  be  asserted.  No 
grounds  of  defense  anterior  to  the  old  judgment  can 
be  brought  forward.  No  relief  beyond  that  embraced 
in  the  old  judgment  can  be  obtained;  and,  finally,  the 
judgment  entered  upon  the  scire  facias  is  simply  ''that 
the  plaintiff  have  execution  for  the  judgment  men- 
tioned in  the  said  scire  facias,  and  his  costs."  ^^     One 

7  Brown  v.  Harley,  2  Fla.  164;  2  Sellon's  Practice,  188. 

8  Fenner  v.  Evans,  1  Term  Rep.  267;  Winter  v.  Kretcliman,  2  Term 
Rep.  46;  Farrell  v.  Gleeson,  11  CI.  &  F.  702;  Bilbo  v.  Allen,  4  Heisli. 
;^1;  Swancy  v.  Scott,  9  Humpb.  340;  State  Bank  v.  Vance,  9  Yerg. 
471;  Howard  v.  Randall,  58  Vt.  564. 

9  Dicliey  v.  Craij?,  5  Paige,  283;  Dickinson  v.  Allison,  10  Ga.  557; 
Reynolds  v.  Rogers,  5  Ohio,  169;  Potter  v.  Titcomb,  13  Me.  36;  Treas- 
urers V.  Foster,  7  Vt.  52;  W^olf  v.  Pouudsford,  4  Ham.  397;  Comstock 
V.  Holbrook,  16  Gray,  111;  Ingram  v.  Belk,  2  Strob.  207;  W^riglit  v. 
Nutt,  1  Term  Rep.  388:  Phillips  v.  Brown,  6  Term  Rep.  283;  Denegre 
V.  Ilaun,  14  Iowa,  240,  81  Am.  Dec.  480;  Fitzhugh  v.  Blake,  2  Cranch 
C.  C.  37;  Hopkins  v.  Howard,  12  Tex.  7;  Foster  on  Scire  Facias,  11, 
18;  Cocks  V.  Brewer,  11  Mees.  &  W.  50;  2  Dowl.,  N.  S.,  759;  Adams  v. 
Rowe,  11  Me.  89,  25  Am.  Dec.  266;  Carter  v.  Carringer,  3  Yerg.  411, 
24  Am.  Dec.  585;  Masterson  t.  Cundiff,  58  Te.v.  472. 

10  Vredenberg  v.  Snyder.  6  Iowa.  39;  Woolston  v.  Gale.  4  Ilalst. 
32;  Camp  v.  Gainer,  8  Tex.  372;  Tindall  v.  Carson,  16  N.  J.  L.  94; 


307  EXECUTION  ON  DORMANT  JUDGMENTS.  §  82 

of  the  consequences  inevitably  resulting  from  the  fact 
that  a  scire  facias  is  not  a  new  acti<jn  is  that  it  is  a 
proceeding  in  the  same  suit  in  which  the  original  judg- 
ment was  entered,  and  therefore  within  the  control  of 
the  court  liaving  jurisdiction  over  that  judgment  and 
its  enforcement,  and  that  that  court  may  continue  to 
exercise  its  jurisdiction  for  the  purpose  of  authorizing 
the  issuing  of  execution  irrespective  of  any  change 
which  ma^^  have  taken  place  in  the  residence  of  the 
parties.*^  In  Pennsylvania,  the  practice  in  scire  facias, 
and  the  judgment  therein,  are  different  from  what  they 
are  under  common-law  forms  of  procedure,  and  accom- 
plish results  very  similar  to  those  brought  about  by  an 
action  on  a  judgment.^^ 

§  82.  In  What  Actions  may  be  Sued  Out.— By  the 
common  laAV,  a  plaintiff  who  failed  to  take  out  execu- 
tion in  a  personal  action  Avithin  a  year  and  a  day  had 
no  means  of  obtaining  execution  upon  that  judgment. 
The  right  to  execution,  when  once  lost  through  his 
delay,  could  not  be  restored.  Ilis  only  remedy  was  to 
commence  an  action  on  his  judgment,  and  thereby  pro- 
cure a  new  judgment.  The  necessity  of  bringing  a 
new  action  was  obviated  by  the  statute  Westminister 
2,  c.  45,  by  which  a  scire  facias  was  given  in  all  per- 
sonal actions.*^    Independently  of  statute,  the  right  to 

Murray  v.  Baker,  5  B.  Mon.  172;  W^alton  v.  A'andorhoof.  Tenn.  73; 
Flanly  v.  Adams,  15  Ark.  232;  Eddy  v.  Coldwell,  23  Or,  1G3,  37  Am. 
St.  Kep.  ('>72. 

11  MastersoQ  v.  Cundiff,  58  Tex.  472;  Sclimidtke  v.  Miller,  71  Tex, 
103. 

12  Custer  V.  Dettoror,  3  Watts  &  S.  2S;  Colliugwood  v.  Carson,  2 
Watts  &  S.  220;  Shaefer  v.  Child,  7  "Watts,  84;  Maus  v.  Maus,  5 
Watts.  315;  Fries  v.  Watson,  5  Serg:.  &  R.  220. 

13  This  statute  Is  in  force  in  Florida.  Union  Bank  v.  Powell.  3 
Kla.  175,  52  Am.  Dec.  .3()7.  By  the  code  of  Georsia.  a  scire  facias 
may  be  issued  by  the  clerk  of  the  court  in  vacation,  on  the  oral  de- 
mand of  plaintiff.     Hill  v.  Neal.  52  Ga.  92. 


§  82  EXECUTION  ON  DORMANT  JUDGMENTS.  308 

a  scire  facias  to  obtain  execution  of  a  judgment  in  a 
real  action  was  accorded  by  the.  common  law.  And 
this  remark  is  equally  true  of  actions  of  ejectment  and 
actions  of  a  mixed  nature,  in  all  of  which  scire  facias 
was  authorized  and  required  to  obtain  execution  after 
a  year  and  a  day.^*  It  is  said  that  there  are  some  ac- 
tions in  which  execution  may  be  taken  out  after  a 
year  and  a  day  without  a  scire  facias.  "It  is  well  set- 
tled that  it  dges  not  apply  to  judgments  entered  by 
confession  under  a  warrant  of  attorney,  but  only  to 
actions,  and  judgment  thereon  by  default,  confession, 
or  on  demurrer,  under  the  statute  of  8  and  9  William 
III,  c.  11,  sec.  8."  ^^  In  Kentucky,  it  has  been  held  that 
where  a  decree  is  for  the  payment  of  a  sum  certain, 
and  may  therefore  be  enforced  by  execution,  it  may  be 
revived  by  scire  facias.^**  But  in  other  states  the  opin- 
ion prevails  that  as  a  scire  facias  is  a  purely  legal 
proceeding,  it  cannot  be  employed  in  a  case  in  equity, 
unless  authorized  by  statute,^''  nor  to  revive  a  decree 
of  a  probate  court.^^  When  coui*ts  of  chancery  are  by 
statute  given  authority  to  issue  writs  of  execution,  to 
enforce  the  payment  of  money,  substantially  similar  to 
that  possessed  by  courts  of  law,  it  seems  logical  to  in- 
fer that  they  are  thereby  impliedly  granted,  as  an  in- 
cident of  the  authority  thus  conferred,  the  right  to  pur- 
sue remedies  such  as  courts  of  law  may  properly  pur- 

1*2  Sellon's  Traftice,  ISO;  Hess  v.  Sims,  1  Yerg.  143;  Withers  v. 
Harris,  2  Ld.  Kaym.  80G;  1  Ralli.  2r)S;  7  Mod.  04;  Proprietors  v.  Davis, 
1  (ireenl.  309;  rmelor  v.  Johnson,  2  Salk.  600;  Foster  on  Scire  Facias, 
2-6. 

15  Jones  V.  DilworTh,  03  I'a.  St.  447;  T>ongstreth  v.  Gray,  1  Watts, 
CO;  Slddniore  v.  Bradford,  4  Pa.  St.  296. 

16  Logan  V.  Cloyd,  1  A.  K.  Marsh.  201. 

17  Curtis  V.  Hawn,  14  Ohio,  185;  .Jeffreys  v.  Yarborough,  1  Dev. 
Eq.  500. 

18  Kirby  v.  Anders.  20  Ahi.  400;  Ilurst  v.  Williamson.  42  Ala.  29G. 


300  EXECUTION  ON  DOILMANT  JL'D(JMi:NTS.  §  S2 

sue  in  like  coutiugeucies.    In  .Missi.ssiijpi,  the  jurisdic- 
tion previously   possessed   by   courts   of   probate   was 
transft.-rred  to  courts  of  cliancery,  and  llii  rcafter  a  writ 
of  scire  facias   was   prosecuted   iu   one   of   tlie   latter 
courts  upon  a  decree  entered  in  one  of  tbe  former  be- 
fore tbe  date  of  such  transfer.     This,  it  was  insisted, 
was  irregular  and  wholly  unauthorized,  but  the  court 
held  that  the  proceeding  could  have  been  prosecuted  in 
the  probate  court  but  for  the  transfer  of  its  jurisdiction 
to  chancery,  and  that,  included  in  this  transfer,  was 
the  right  to  issue  the  writ  in  question.    The  court  said: 
"To   the  objection  that  scire  facias  is  unauthorized  in 
chancery,  we  remark  that,    upon    general    principles, 
the  objection  would  be  well  taken,  but,  in  our  opinion, 
it  is  unobjectionable,  and,  in  fact,  is  authorized  in  the 
conclusion  of  the  cases  originating  in  the  late  court  of 
probate.    The  writ  is  simple,  precisely  adapted  to  the 
circumstances;  it  states  the  judgment  or  decree  sought 
to  be  revived,  with  a  prayer  for  revival  and  for  execu- 
tion, and  notice  to  the  party  against  whom  it  issues  to 
show  cause,  on  a  day  named,  why  its  prayer  should  not 
be  granted;  it  fully  meets  the  exigencies  of  the  case, 
and  does  so  at  once  in  a  precise,  plain,  and  practicable 
mode,  suited  to  the  facts  and  to  the  simi^licity  of  our 
practice  in  probate  cases.''  ^^ 

In  suits  for  divorce,  a  wife  is  often  awarded  ali- 
mony not  payable  in  one  gross  sum,  but  at  stated 
and  frequently  recurring  periods,  and  the  question 
has  arisen  whether  the  pavment  of  such  sums  mav 
be  enforced  by  scire  facias  as  well  as  by  attach- 
ment for  contempt.  In  such  a  case,  it  seems  clear 
iliat  execution  cannot  issue  as  a  matter  of  course,  for 
it  may  be  that  some    contingf^u-y    has    arisen    under 

18  Isom  V.  McGehee,  45  Miss.  712. 


§  S3  EXECUTION  ON  DORMANT  JUDGMENTS.  310 

which  she  has  no  longer  any  right  to  exact  alimony,  or 
it  may  have  been  paid  as  directed  in  the  decree.  Some 
notice  ought  to  be  given  the  party  claimed  to  be  in  de- 
fault before  any  writ  is  issued  against  his  person  or 
property.  The  proceeding  by  scire  facias  is  well 
adapted  to  giving  the  requisite  notice,  and  there  seems 
to  be  no  doubt  that  it  is  an  appropriate  and  perhaps 
the  exclusive  proceeding  in  such  cases.^^  This  remark 
is  also  true  with  respect  to  judgments  at  law,  by  which 
sums  of  money  are  recovered  payable  in  instalments,^* 
It  is,  however,  in  all  cases  where  resoii:  is  had  to 
this  remedy,  necessary  to  show  that  there  is  a  judg- 
ment or  order  establishing  the  plaintiff's  right  to  a 
fixed,  definite  sum  of  money,  the  amount  of  which  can 
be  ascertained  by  inspecting  the  record  and  making 
the  computations  justified  thereby.  If  parol  or  other 
evidence,  not  found  in  the  record,  must  first  be  heard 
to  enable  the  court  to  determine  the  amount  of  plain- 
tiff's recovery,  the  remedy  by  scire  facias  cannot  be 
sustained.^^ 

§  83.  When  Necessary,  and  Consequences  of  Not 
Prosecuting. — We  have  already  shown  that  scire  facias 
issued  in  three  cases:  1.  To  revive  an  ordinary  judg- 
ment between  the  parties;  2.  To  obtain  execution 
where  a  new  party  was  to  be  charged  or  benefited;  and 
3.  To  obtain  execution  on  a  contingent  judgment  upon 
the  happening  of  the  contingency.  In  this  chapter  we 
shall  treat  only  of  the  first  and  second  classes  of  cases. 
In  the  chapters  on  issuing  original  and  alias  writs,  we 
have  already  considered  in  what  instances  it  is  neces- 

20  Morton  v.  Morton,  4  Cnsh.  518. 

21  Collins  V.  Collins,  2  Burr.  820;  Willougbby  v.  Swinton.  G  Bast, 
550. 

22  Chestnut  v.  Chestnut,  77  111.  346. 


811  EXECUTION  ON  JJOUMANT  JUDGMENTS.  §  ^Z 

sary  to  sue  out  a  scire  facias  between  the  original  par- 
ties  to  the  judgmeut;  aud  have  found  that,  as  to  orig- 
inal writs,  the  scire  facias  was  necessary  after  a  lapse 
of  a  year  and  a  day,  except  wliere  the  delay  had  been 
occasioned  by  the  defendant;  ^^  wliile  if  the  original 
isisued  within  a  year  and  a  day,  and  was  returned,  the 
right  to  issue  alias  writs  could  be  continued  to  any  dis- 
tance of  time  (luring  the  life  of  the  judgment.^*  Within 
a  year  and  a  day,  it  often  became  necessary  to  obtain 
execution  by  scire  facias,  even  as  between  the  original 
parties.  The  judgment  might  be  satisfied  through 
fraud  or  mistake,  or  by  a  sale  to  plaintiff  of  property 
to  which  defendant  had  no  title.  In  these  and  other 
cases,  where  the  plaintiff's  right  to  execution  seem<d  to 
be  extinguished,  but  in  which  he  had,  in  fact,  obtained 
no  satisfaction,  or  but  a  partial  satisfaction,  he  could, 
by  scire  facias,  bring  the  defendant  before  the  court, 
vacate  the  entry  upon  the  record,  or  make  it  conform  to 
the  facts,  and  obtain  execution.^^  In  T(^xas,  a  scire 
facias  may  become  necessary,  or  at  least  advisable,  be- 

aT  See  §§  27,  28;  also  2  Sellon's  Practice,  189;  Foster  on  Scire  Fa- 
cias, 8-10,  <)6-97;  Tidd's  Pr.  1104. 

24  See  §  51;  also  2  Sellon's  Practice,  189;  Tidd's  Pr.  1104;  Reed  v. 
Williams,  3  A.  K.  Marsh.  r.21;  Dodure  v.  Casey.  1  Miles,  13;  Clemens 
V.  Brown,  9  Mo.  718:  Blnyor  v.  Baldwin,  2  Wils.  S^i;  Seymour  v. 
Green vill,  Carth.  283:  Thorp  v.  Fowler,  u  Cow.  446;  Dowsman  v. 
Potter,  1  Mo.  .")18;  Craig  v.  .Tohnson.  Hardin,  529:  Cook  v.  Batthurst. 
2  Show.  235;  Aires  v.  Hardress,  1  Strange,  100;  Scnil  v.  Godbolt,  4 
Ala.  320;  Bank  of  Mississippi  v.  Catlett,  5  How.  (Miss.)  175;  Lindell 
V.  Benton,  0  Mo.  3G1;  .Tewett  v.  Hoogland,  30  Ala.  716;  Abbey  v. 
Comni.  Bank,  31  Miss.  434;  Foster  on  Scire  Facias,  84;  Messlck  v. 
Russel,  3  Harr.  13;  .Ionian  v.  Petty.  5  Fla.  .326;  Bracken  v.  Wood,  12 
Ark.  605;  Kellogg  v.  Buckler,  17  Ga.  187;  Strawbridge  v.  Mann,  17 
Ga.  454. 

2R  See  §§  .5.3.  .54;  also  Arnold  v.  Fuller.  1  Ham.  4.58;  Steward  v. 
Allen,  5  Greenl.  I(i3:  Wilson  v.  Green.  19  Pick.  4.3:^:  Foster  on  Scire 
Facias,  47-57;  Dewing  v.  Durant.  10  Gray,  29;  Keith  y.  Proctor,  8 
Baxt,  189;  McRoberts  v.  Lyon.  79  Mich.  25. 


§  S3  EXEl  UTION  ON  DORMANT  JUDGMENTS.  312 

fore  the  judgment  lias  become  so  dormant  that  execu- 
tion cannot  issue  thereon.  By  the  statutes  of  that 
state,  an  execution  may  issue  at  any  time  within  ten 
years  after  the  issuing  of  the  last  preceding  execution; 
but  the  lien  of  the  judgment  becomes  inoperative  un- 
less execution  issues  ''within  one  year  from  the  first 
day  when  it  might  issue."  The  lien  after  becoming  in- 
operative may  be  revived  by  scire  facias,  though  the 
judgment  is  not  dormant  in  the  sense  that  no  execu- 
tion can  issue  upon  it.^** 

If  the  judgment  remains  unsatisfied,  and  there  is  a 
right  to  execution  upon  it,  and  the  plaintiff  is  required 
to  revive  it  by  scire  facias  or  to  prosecute  some  other 
proceeding,  as  a  result  of  which  he  may  obtain  leave, 
or  an  order,  of  court,  for  the  issuing  of  the  execution, 
its  issuing,  unless  authorized  by  siich  proceeding,  is  of 
course  illegal,  and  the  defendant  may  move  the  court 
to  quash  or  recall  the  writ.  In  the  absence  of  such  a 
motion,  and  until  the  writ  is  actually  vacated  by  the 
court,  it  must  be  treated  as  valid,  and  will  support  all 
steps  taken  in  obedience  to  its  commands,  and  a  sale 
made  thereunder  will  divest  the  title  of  the  defendant 
as  completely  as  if  the  judgment  had  been  revived  in 
the  most  formal  manner.^'^  Where,  however,  the  pur- 
pose of  the  scire  facias  is  to  continue,  or  prevent  the 
expiration  of,  some  lien  against  the  property,  the  omis- 
sion to  prosecute  it  is  not  a  mere  irregularity  which  is 
waived  by  failing  to  move  to  quash  the  writ.  In  such 
a  case,  to  retain  the  advantage  of  the  lien,  it  is  essen- 

29  Masterson  v.  Cundiff,  .08  Tex.  472. 

2T  Draper  v.  Nixon,  93  Ala.  430;  Gardner  v.  Mobile  etc.  R.  R.  Co., 
102  Ala.  635,  48  Am.  St.  Rep.  84;  De  Loach  v.  Robbins,  102  Ala.  288, 
48  Am.  St.  Rep.  40;  Gillespie  v.  Switzer,  43  Neb.  772;  Link  v.  Counell, 
48  Neb.  574;  Eddy  v.  Cold  well,  23  Or.  163,  37  Am.  St.  Rep.  672;  Oduin 
V.  Menafee,  11  Tex.  Civ.  App.  119;  Hill  v.  Newman.  67  Tex.  26.5. 


313  EXECUTION  ON  DOIIMANT  JUDGMENTS.  §  84' 

tial  not  only  to  prosecute  tlio  writ,  but  also  that  there 
be  made  parties  to  it  all  persons*  claiming;  an  interest 
under  the  defendant;  and,  if  any  of  them  is  omitted,  the 
lien  as  a.^ainst  liis  interest  tenniiialcs,  and  a  siibsc- 
<ju<'nt  sale  under  the  judgment  and  its  revivor  cannot 
prejudice  him.~^ 

§  84.    When  the  Parties  have  been   Changed  without 

Death  of  Either.— The  rhan^cs  in  the  parties  to  a  judj;- 
ment  whi(di.  at  the  common  law,  rendered  a  scire  facias 
essential,  usually  occui-rcd  throu,<;h  the  death  either  of 
a  plaintiff  or  of  a  defendant,  and  sometimes,  but  more 
rarely,  by  the  introduction  of  a  new  party  by  other 
means  than  by  the  death  of  either  of  the  original  par- 
ties. The  latter  class  of  cases  was  created  chiefly,  if 
not  exclusively,  by  either  marriage  or  bankruptcy.  If 
a  feme  sole  recovers  judgment,  "and  she,  before  execu- 
tion taken  out,  marries,  the  husband  and  wife  must 
sue  out  a  scire  facias  and  get  judgment  thereon  quod 
habeant  executionem;  and  if,  after  such  judgment,  but 
before  execution,  the  wife  dies,  the  husband  alone  may 
have  a  scii'e  facias  and  go  on  to  execution."  ^'^  By  the 
scire  facias  the  judgment  becomes  the  x>roperty  of  the 
husband.  "So,  vice  versa,  if  ju<lgment  be  recovered 
against  a  feme  sole,  and  she  mai'ries,  a  scire  facias  must 
be  sued  out  against  the  husband  and  Avife,  and  judg- 
ment had  against  them;  and  if  the  wife  then  dies,  a 
new  scire  facias  may  issue  against  the  husband  only, 
and  he  will  be  chargeable,  though  he  was  not  liable 
upon  the  first  judgment.''  ""     "In  cases  of  bankruptcy, 

2«  Lone:  V.  McConnoll,  IHS  Ta.  St.  373. 

-9  2  SoUon's  Practico,  VM:  Binshaiu  on  .TiKlsiniontsj  and  Rxocutions, 
i;]S;  .Tohusou  V.  Parniley,  17  .lolnis.  271;  Woodyer  v.  (Jroshani.  1  SalU. 
110. 

so  2  ScUon's  Practice,  104;  Miles'  Ca>t».  1  Mod.  17U;  Obrian  v. 
Kanmi.  Carth.  nO;  3  Mod.  ISO. 


§  85  EXECUTION  ON  DORMANT  JUDGMENTS.  314- 

a  scire  facias  is  necessary  before  proceeding  to  execu- 
tion, inasmuch  as  a  new  party  (the  assignees)  are  bene- 
fit! d  by  the  execution  and  ought  tlierefore  to  show  that 
they  have  due  authority  to  assume  that  benefit."  ^^ 

In  some  of  the  states  it  is  said  that  when  unsound- 
ness of  mind  exists,  the  person  found  to  be  so  unsound 
should  be  regarded,  for  most  purposes,  as  civilly  dead, 
and  statutes  have  been  enacted  which,  in  substance, 
prevent  the  execution  of  a  judgment  against  such  a 
person,  unless  his  guardian  or  committee  is  brought  be- 
fore the  court.  Where  statutes  of  this  character  exist, 
they,  by  implication,  authorize  and  require  that  pro- 
ceedings to  revive,  or  obtain  execution  upon,  judg- 
ments when  the  defendant  is  insane,  be  prosecuted 
against  his  guardian.''*^ 

§  85.  Change  in  the  Parties  by  Death.— We  have  al- 
ready shown  that  the  teste  of  the  writ  and  the  date  of 
its  actual  issuing  may  differ,  and  that,  as  a  general  rule, 
any  change  taking  place  in  the  parties  after  such  teste 
does  not  render  any  proceeding  for  revivor  necessary.^ 
While,  on  the  other  hand,  statutes  in  some  of  the  states 
forbid  any  proceeding  under  execution  after  the  death 
of  the  defendant,  and  require  either  some  revivor 
against  his  estate  or  that  the  judgment  be  presented 
and  allowed  in  the  probate  courts,  and  proceedings 
looking  to  its  satisfaction  be  conducted  therein.^ 
Whether  the  death  of  a  plaintiff  or  of  a  defendant  ren- 

31  Bingham  on  Judgments  and  Executions,  141;  2  Sollon's  Prac- 
tice, 19o. 

32  McNees  v.  Tliompson,  5  BuiRh,  686. 

33  :\Iontjiomery  v.  lloalliafer,  85  Tenn.  668,  4  Am.  St.  Rep.  780; 
Coffin  V.  Freeman,  84  Me.  535;  Benners  v.  Rhinehart,  107  N.  C.  705, 
22  Am.  St.  Rep.  909. 

34  United  States  v.  Insley,  49  Fed.  Rep.  776;  Hooper  v.  Caruthers, 
78  Tex.  432. 


315  EXECUTION  ON  DORMANT  JUDGMENTS.  §  85 

(1(TS  a  Rfire  facias  noressary  is  to  be  deteniiined  by  as- 
certaining whetlier,  tlirou*^!!  such  death,  a  new  party 
is  char«;ed  or  benefited  by  the  judgment.  Whenever  a 
sole  plaintiff  or  a  sole  defendant  dies,  it  is  obvious  that 
the  judgment  cannot  be  enforced  without  affecting 
some  new  party.  Here,  then,  it  is  clear  that  a  scire 
facias  is  necessary.  Upon  the  death  of  one  of  several 
coplaintiffs  or  codefendants  in  a  personal  action,  the 
doctrine  of  survivorship  applies.  The  judgment,  on 
the  death  of  one  of  the  plaintiffs,  may  be  executed  for 
the  benefit  (»f  the  survivors,  in  which  case,  as  no  new 
party  is  benefited,  no  scire  ff\cias  need  be  prosecuted. 
On  the  death  of  one  of  the  defendants  in  a  personal  ac- 
tion, satisfaction  may  be  sought  of  the  survivors,  in 
which  case  a  revivor  would  be  useless.  If  satisfaction 
is  sought  from  the  property  of  the  deceased  defendant, 
a  new  party  is  necessarily  interested,  and  must  first  be 
proceeded  against  by  scire  facias.  But  in  all  actions 
pertaining  to  the  possession  or  title  of  real  estate,  the 
death  of  one  of  several  plaintiff's,  or  of  one  of  several 
defendants,  introduces  some  new  party  in  interest,  and 
renders  a  scire  facias  indispensable."'  With  respect 
to  the  persons  who  must  be  proceeded  against  by  scire 
facias,  after  the  death  of  a  defendant,  the  law  must  be 
consulted  to  ascertain  whose  interests  may  be  all'ected 
by  the  execution.  If  the  law  is  such  that  the  property 
sought  to  be  reached  descends  to  the  heirs  alone,  the 
personal  representatives  need  not  be  made  parties; 
and  if,  on  the  other  hand,  it  descends  to  the  personal 
representatives  alone,  the  heirs  need  not  be  made  par- 

85  Foster  on  Scire  Facias,  ITri-lTT;  Witlicrs  v.  Harris.  7  Mod.  ftS; 
Sir  William  Herbert's  Case.  3  Coke,  14:  Lamptou  v.  Collinffwood.  4 
Mod.  :n5;  Wright  v.  Madocks.  S  Q.  B.  122;  Dibble  v.  Taylor,  2  Speers, 
308,  42  Am.  Dec.  368. 


§  86  EXECUTION  ON  DOR-MANT  JUDGMENTS.  310 

ties.  The  qiie^^tiou  lias  arisen  wlietlier  on  the  death  of 
one  of  several  defendants,  against  Avhoni  judgment  has 
been  rendered  on  a  joint  contract,  any  scire  facias  can 
issue  against  the  representatives  of  the  decedent. 
Against  the  issuing  of  such  writ  it  has  been  urged  that 
on  the  death  of  one  of  several  parties  to  a  joint  contract 
his  executor  or  administrator  is  discharged  from  all 
liability,  and  only  the  survivors  remain  answerable  to 
proceedings  for  its  enforcement;  ^^  on  the  other  hand, 
it  has  been  held  that,  in  such  a  case,  the  phiintiff  might 
have  a  scire  facias  framed  on  the  special  matter,  and 
proceed  against  the  surA^ivor  and  the  pergonal  repre- 
sentatives of  the  decedent,  if  personalty  was  sought  to 
be  seized,  or  against  the  survivor  and  the  heirs-  and 
terre-tenants  of  the  decedent,  if  real  estate  was  to  be 
subjected  to  a  judgment  lien.*'*''  In  Pennsylvania,  a 
scire  facias  may  not  be  prosecuted  against  a  surviving 
defendant  and  the  representatives  of  a  decedent,  to 
charge  the  personal  estate  of  the  latter,'**^  though, 
where  a  judgment  is  a  lien,  it  may  by  scire  facias  be 
enforced  against  the  real  estate  of  the  survivor  upon 
which  such  lien  had  attached.^^ 

§  86.  Parties  Plaintiff. — As  a  scire  facias  must  pur- 
sue the  judgment,  it  follows  that  all  the  plaintiffs, 
while  all  are  living,  must  join  in  the  writ.  Except  in 
the  case  of  the  death,  marriage,  or  bankruptcy  of  the 
plaintiff,  a  scire  facias  must,  by  the  common  law,  be 

36  Stoner  v.  Stroman,  9  Watts  &  S.  8.";  Howe  v.  Gibert,  2  Bail.  SOG. 

37  Union  Bank  v.  Heirs  of  Powell,  3  Fla.  175,  52  Am.  Dec.  3f!7; 
Henderson  v.  Vanhook,  24  Tex.  358;  Austin  v.  Reynolds,  13  Tex. 
544;  Underbill  v.  Devereux,  2  Saimd.  72;  note  to  Tretheny  v.  Ack- 
laud,  2  Saund.  G7;  Iluey  v.  Redden.  3  Dana,  488. 

88  Stoner  v.  Stroman,  9  Watts  &  S.  85. 

88  Commonwealth  v.  Mateer,  IG  Serg.  &  R.  41G. 


817  EXKCUTIOX  ON  DORMANT  JUDGMENTS.  §  87 

prosecuted  iu  the  name  of  the  plaintill'; '^'^  but  by  stat- 
ute this  right  has  sometimes  been  given  to  the  assignee, 
or  equitable  owner  of  the  judgnient.^^  Unless  the  com- 
mon-law rules  upon  the  subject  have  been  modified  by 
statute,  an  assignee  cannot  prosecute  scire  facias  iu  his 
own  narae.'^  If  the  writ  or  proceeding  should  disclose 
the  fact  that  an  assignment  has  been  made,  and  that 
the  revivor  is  sought  for  the  benefit  of  assignees  named, 
this  designation  of  them  is  surplusage,  and  cannot 
limit  the  eilect  of  the  revivor  so  as  to  exclude  from  its 
benefit  persons  having  equitable  interests  in  the  judg- 
ment as  assignees,  but  who  were  not  named  in  the  pro- 
ceedings for  revivor.^^ 

^Vhen  a  sole  plaintiff  dies,  the  scire  facias  must  be 
prosecuted  by  the  person  who  represents  the  dec<*ased. 
If  the  judgment  is  in  a  personal  action,  the  scire  facias 
should  be  by  the  executor  or  administrator;  if  in  a  real 
action,  or  an  action  for  the  possession  of  realt}',  it 
should  be  by  the  heir.  "In  a  mixed  action,  it  is  said,  if 
the  lands  to  be  recovered  be  fee-simple,  the  heir  and 
the  executor  shall  join  in  the  scire  facias,  and  the  heir 
have  execution  as  to  the  lanjls,  and  the  executor  execu- 
tion as  to  the  damages."  *^ 

§  87.  Parties  Defendant. — In  determining  who  must 
be  parties  defendant  in  a  writ  of  scire  facias,  we  may 
consider  the  question,  first,  with  reference  to  the  orig- 
inal defendants  in  the  suit;  and  second,  with  refer- 
ence to  new  persons  Avho  are  to  be  affected  by  the  pro- 

40MoKinney  v.  Mehaffoy,  7  Watts  &  S.  276. 

41  Murphy  v.  Cochran,  1  Hill,  330;  Clark  v.  Dieses.  5  Gill.  118; 
McRoborts  v.  Lyon,  79  Mich.  25;  Wonderly  v.  Lafayette  County,  74 
Fed.  Rop.  702. 

42Wolls  V.  Craham,  30  W.  Va.  G05. 

43  Erust's  Estate,  104  Pa.  St.  87. 

44  Foster  on  Scire  Facias,  ISO. 


§  87  EXECUTION  ON  DORMANT  JUDGMENTS.  318 

posed  revivor.  A  scire  facias  should  conform  to  the 
judgriient,  and  must  therefore  be  joint  when  the  judg- 
ment is  joint.*^  Where  there  is  a  judgment  against 
two  or  more  defendants,  it  may  be  revived  against  one 
alone  if  he  consents  thereto;  for,  as  he  is  the  sole  person 
injured  bj  such  revivor,  he  is  the  sole  person  who  can 
object,  and  even  his  objection  should  be  interposed  be- 
fore the  judgment  on  the  scire  facias  is  entered  against 
him.^^  In  an  early  English  case,  one  of  two  judgment 
debtors  having  died,  a  scire  facias  was  prosecuted 
against  the  survivor  alone,  correctly  describing  the 
original  judgment,  and  suggesting  the  death  of  the 
other  defendant.  This  scire  facias  was  sustained,  be- 
cause it  was  said  that  the  court  could  not  know  but 
that  the  plaintiff  intended  to  take  out  a  fieri  facias  and 
levy  it  on  the  personal  estate  of  the  survivor,  which  he 
could  lawfully  do;  but,  at  the  same  time,  the  court 
stated  that  the  jjlaintiff  could  not  be  allowed  to  talTe 
out  and  execute  an  elegit  on  such  revived  judgment.*'^ 
But  at  the  present  day,  the  rule  seems  to  almost  uni- 
versally prevail  that,  where  there  is  a  joint  judgment 
against  two  or  niore,  there  must,  unless  the  nonjoinder 
is  waived,  be  a  joint  scire  facias.  The  judgment  must 
be  revived  against  all  the  defendants,  when  all  are  still 
living;  and  when  one  has  died,  his  representatives 
must  be  made  parties  in  his  stead.  The  plaintiff  can 
neither  proceed  against  the  survivors  without  joining 
the  representatives  of  the  deceased,  nor  against  the 
representatives  of  the  deceased  without  joining  the 
survivors."**    And  it  is  said  that  a  discontinuance  as  to 

*5  Rowland  v.  Harris  (Tex.  Civ.  App.),  34  S.  W.  295. 
40  Edwards'  Appeal,  G6  Pa.  St.  89. 

47  Edsar  v.  Smart.  T.  Kaym.  26. 

48  I-'oster  on  Scire  Facias.  20;  Sainsbury  v.  Prin^le,  10  Barn.  &  C. 
751;  Grenell  v.  Sharp,  4  "Whart.  344;  McAfee  v.  Patterson,  2  Smedes 


31'J  EXECUTION  ON  DORMANT  JUDGMl!:NTS.  §  87 

liny  of  the  necessary  parties  to  a  scire  facias  operates 
as  a  discontinuance  as  to  all.'^*  The  (•omnion-law  rules 
upon  tliis  subject  may  be  modified  by  implication  by 
cbanninj]^  the  character  of  the  liability  to  be  revived. 
Thus,  by  the  common-law  rule  a  judgment  against  two 
or  more  persons  is  construed  to  be  joint,  and  to  every 
action  thereon  all  the  defendants  are  required  to  be 
made  parties.  By  statutes  in  some  of  the  states,  judg- 
ments upon  specified  causes  of  action  are  several  as 
well  as  joint.  Where  such  is  the  case,  a  revivor, 
whether  by  scire  facias  or  any  other  authorized  pro- 
ceeding, may  be,  if  the  plaintiff  so  elects,  against  any 
of  the  defendants  without  including  the  otliers."'^**     If 

&  M.  593;  Fowler  t.  rviikerby.  0  Dowl.  P.  C.  082;  Murray  v.  Baker.  5 
B.  Mon.  172;  Trriiy  v.  ^IcDowcll,  5  T.  B.  Mou.  501;  Iloliler  v.  Common- 
wealth, 3  A.  K.  Marsh.  407;  I'anton  v.  Hall,  Salk.  59S;  Rex  v.  Chap- 
man, 3  Austr.  811;  lleudorson  v.  Vandhook,  24  Tex.  358;  Austin  v. 
Reynolds,  13  Tex.  544;  :Mitchell  v.  Smith,  1  Litt.  243;  Coleman  v. 
Edwards,  2  Bibb,  595;  Williams  v.  Fowler,  3  T.  B.  Mon.  31G;  Bolinger 
V.  Fowler,  14  Ark.  27;  Greer  v.  State  Bank,  5  En.?.  45G;  2  Saund.  51, 
note  4,  to  case  of  Trethewy  v.  Ackland;  but  in  Alabama  plaintiff  may 
discontinue  as  against  either  defendant;  Hanson  v.  Jacks,  22  Ala. 
549;  and  in  Arkansas  and  Iowa  may  proceed  against  a  survivor 
without  joining  the  representatives  of  a  deceased  defendant.  Vre- 
denberg  v.  Snyder,  G  Iowa,  39;  Finn  v.  Crabtree,  7  Eng.  507.  But 
■when  a  scire  facias  recites  the  judgment  properly,  and  calls  on  all 
the  defendants  to  show  cause,  and  when  part  are  summoned,  it  ap- 
pears that  the  others  are  insolvent,  or  dead,  or  out  of  the  state,  or 
have  nothing,  it  has  been  held  that  judgment  might  be  entered 
against  those  summoned;  and  "that  the  award  of  execution  is  not 
necessarily  to  pursue  the  form  of  the  scire  facias,  but  may  bo  accom- 
modated to  what  shall  be  judicially  ascertained  to  be  the  law  fit 
for  enforcing  the  judgment;  and  also,  that  if  it  appear  of  record 
that  one  of  the  defendants  to  the  judgment  cannot  be  summoned  and 
need  not  be  summoned,  for  that  he  has  not  the  ability  to  be  con- 
tributory to  the  payment  of  the  judgment,  the  execution  for  the 
whole  may  rightfully  issue  against  the  other."  Blnford  v.  Alston. 
4  Dev.  355. 

*»  Morton's  Exrs.  v.  Croghan's  Terre-tenants,  20  Johns.  106;  Mc- 
Afee V.  I'atterson.  2  Smedos  &  M.  593. 

80  Patterson  v.  Walton,  119  N.  C.  500;  United  States  v.  Houston, 
48  Fed.  Rep.  207. 


§  S7  EXECUTION  ON  DORMANT  JUDGMENTS.  32a 

one  of  the  parties  (lefendant  to  a  judgment  has  been 
released  therefrom,  as  by  his  discharge  in  bankruptcy,, 
and  it  can  no  longer  be  enforced  against  him,  it  is  said 
he  need  not  be  made  a  party  to  any  scire  facias  there- 
on.^^ 

Strangers  to  the  original  judgment  may  be  affected 
by  its  revivor  against  the  original  defendant;  and  this 
may  happen  whenever  he  sells  or  encumbers  the  lands 
upon  which  the  judgment  is  a  lien.  Whether  those 
who  have  thus  acquired  interests  under  the  defendant 
must  be  joined  with  him  in  the  scire  facias  is  a  dis- 
puted question,  upon  which  the  authorities  are  some- 
what meager.  In  ^Maryland  it  seems  that,  although 
the  defendant  be  living,  the  judgment  cannot  be  re- 
vived against  him  so  as  to  affect  his  grantees  unless 
they  are  made  parties.^-  But  in  Pennsylvania  and  in 
New  York  an  opposite  view  has  been  taken,  one  show- 
ins  that  it  is  onlv  "in  the  case  of  the  death  of  the  or- 
io'inal  defendant  that  the  terre-tenants  are  to  be  made 
parties,  and  not  wliere  the  original  defendant  is  liv- 
ing." ^^  This  view,  we  think,  is  sustained  bv  the  books 
of  practice.  In  none  of  these  works  do  we  find  any 
reference  to  any  case  in  which  the  successors  in  inter- 
est of  a  living  defendant  need  be  summoned  as  terre- 
tenants.  On  the  contrary,  it  seems  always  to  be  as- 
sumed that  the  only  instances  in  which  it  can  be  neces- 
sary to  summon  others  than  the  original  defendants 
are  where  new  persons  have  become  interested,  either 
tlirough  the  death,  marriage,  or  bankruptcy  of  the  de- 
fendant. 

81  Hanson  v.  Jacks.  22  Ala.  r.40:  Greor  v.  State  Bank,  10  Ark.  458. 

52  Doub  V.  Barnes,  4  Gill,  11,  explaining  Miupli.v  v.  Cord.  12  Gill 
&  J.  182.     See,  also,  Lusk  v.  Davidson.  ?,  Pen.  &  W.  220. 

c".  Youni,'  V.  Taylor,  2  Binn.  228:  Jneksou  v.  Shaffer,  11  Johns.  513;. 
Kighter  v.  Eitteuhouse,  3  Kawle,  278. 


321  EXFX'UTION  ON  DORMANT  JUDGMENTS.  §  i>7 

Upon  the  death  of  a  defendant,  leaving  a  judgment 
which  is  not  a  lien  on  any  real  estate,  no  one  but  his 
personal  representative  need  be  a  party  to  the  scire 
facias.  But  where  the  judgment  is  for  the  possession, 
or  affects  the  title,  or  is  a  lien  on  real  estate,  the  rule 
is  different;  and  it  becomes  necessary  to  warn  all  per- 
sons whose  interests  in  the  real  estate  are  liable  to  be 
prejudiced  by  a  revivor.^^*  In  New  York  and  Missis- 
sippi it  is  said  to  be  improper  to  join  the  heirs  with 
the  personal  representatives  of  the  deceased.^*  But  in 
other  states  the  heirs,  personal  representatives,  and 
terre-tfuants  of  the  deceased  may  all  be  joined  in  one 
scire  facias.^^  In  ejectment,  where  the  judgment  is 
for  the  possession  of  lands  and  for  damages,  both  the 
heirs  and  representatives  of  the  deceased  are  neces- 
sary parties  to  its  revivor;  ^**  but  where  the  judgment 
is  for  possession  alone,  the  personal  representatives 
need  not  be  warned,  if,  under  the  law  prevailing  in  the 
jurisdiction  where  the  lands  lie,  such  representatives 
are  not  entitled  to  be  in  possession  thereof."'^  If  the 
judgment  be  for  money,  it  is  primarily  chargeable 
against  the  executor,  and  no  revivor  ought  to  be  en- 
tered against  the  heirs  until  after  a  return  of  nihil  as 
to  the  executor.^*    Persons  entering  as  tenants  of  the 

■3a  Tiers  v.  Codd,  87  Md.  447. 

04  Lee  V.  McClosky,  44  How.  Pr.  60;  Barnes  v.  McLemore,  12 
Smedes  &  M.  316. 

55  Calloway  v.  Eubank,  4  J.  J.  Marsh.  2S6;  Reynolds  v.  Henderson, 
2  Gilm.  110;  Rowland  v.  Harbaugh,  5  Watts,  3Go;  Graves  v.  Skeels,  6 
Ind.  307. 

66  Mitchell  V.  Smith,  1  Litt.  243. 

BT  Thompson  v.  Dougherty,  3  J.  J.  Marsh.  564;  Walden  v.  Craig, 
14  Pet.  147. 

68  Pantou  V.  Hall,  Carth.  107;  Alston  v.  Munford,  1  Brock.  206; 
Brown  v.  Webb,  1  Watts,  411:  Bingham  on  .Judgments  and  Execu-?- 
tlons.  131;  Roland  v.  Harbaugh,  5  Watts,  305. 
Vol.  I.-'21 


§  87  EXECUTION  ON  DORMANT  JUDGMENTS.  322 

defendant  in  ejectment  after  the  entry  of  the  judg- 
ment are  said  to  be  unnecessary  parties  to  a  scire  fa- 
cias, because  their  holding  is  in  subordination  to  the 
defendant,  and  they  may  properly  be  dispossessed  un- 
der a  habere  facias  against  him."**  In  Alabama,  if 
there  are  two  executors  of  the  deceased  defendant,  one 
of  whom  is  beyond  the  jurisdiction  of  the  court,  he  may 
be  omitted  from  the  scire  facias.^®  Where  a  defend- 
ant is  imprisoned  for  life  upon  a  conviction  for  felony, 
and  is  by  the  law  civilly  dead,  he  cannot  be  a  party  to 
a  scire  facias.  It  ought  to  be  directed  to  his  heirs  or 
representatives;  and,  if  directed  to  and  served  upon 
him  personally,  is  entirely  inoperative.**^  None  but 
those  who  are  made  parties  to  the  scire  facias  are  af- 
fected by  the  judgment  of  revivor.^^  One  about  to 
prosecute  a  scire  facias  to  revive  a  judgment  lien 
against  the  successors  in  interest  of  a  deceased  defend- 
ant, in  determining  who  are  to  be  made  parties,  must 
be  governed  by  the  same  principles  which  would  be 
applicable  to  the  foreclosure  of  a  mortgage  or  other 
lien.  He  must  bring  in  all  persons  holding  title  under 
the  defendant,  but  subordinate  to  the  lien;  but  he  need 
not  and  cannot  proceed  against- persons  whose  claims 
are  adverse  to  the  defendant's  title,  or  paramount  to 
the  lien.**^  "It  is  the  usual  way  to  join  the  heir  and 
terre-tenants  in  the  writ  of  scire  facias;  but  it  is  said 
that  if  it  be  returned  that  the  heir  has  no  lands,  the 
writ  may  proceed   against  the  tenants  of    the  lands 

69  Lunsford  v.  Turner,  5  J.  J.  Marsh.  104;  Von  Puhl  v.  Rucker,  6 
Iowa,  187. 
60  Hanson  v.  Jacks,  22  Ala.  549. 
ei  Troup  v.  Wood,  4  .Tohns.  Ch.  228. 

62  Campbell  v.  Rawdon,  19  Barb.  494. 

63  Morton  v.  Crogban,  20  .Tolins.  lOG;  Lusk  v.  Davidson,  3  Pen.  & 
W.  229;  Polk  v.  Pendleton,  31  Md.  118;  Jarrett  v.  Tomliuson,  3  Watts 
&  S.  114. 


323  EXECUTION  ON  DORMANT  J  L'pLlMENTd.  §68 

without  him,  and  it  may  be  against  the  tenants  of  the 
lands  generally,  without  naming  them,  or  against 
them  by  name,  but  the  former  is  the  usual  form;  for  if 
the  plaintill'  undertakes  to  name  them,  he  must  name 
them  all,  and  if  he  do  not,  those  who  are  named  may 
plead  in  abatement.  It  seems,  however,  to  be  the  bet- 
ter opinion  that  the  terre-tenants  alone  are  not  to  be 
charged  until  the  heir  be  summoned,  or  it  be  returned 
that  there  is  no  heir,  or  that  the  heir  hath  not  any 
lands  to  be  charged."  ^ 

§  88.  Form  of  the  Writ.— The  writ  of  scire  facias  an- 
swered the  double  purpose  of  a  writ  and  of  a  declara- 
tion.^^ Its  form,  therefore,  necessarily  varied  to  cor- 
respond to  the  various  contingencies  in  which  it  might 
issue.  It  was  directed  to  the  sheriff,  and  recited:  1. 
The  recovery  of  a  judgment,  showing  the  court, 
amount,  and  parties;  2.  The  change,  if  any,  in  the  par- 
ties to  the  judgment,  stating  what  new  parties  had  be- 
come interested;  3.  That,  notwithstanding  the  judg- 
ment, execution  still  remains  to  be  done;  4.  That  plain- 
tiff demands  that  he  be  provided  with  a  proper  rem- 
edy; 5.  It  commanded  the  officer  to  make  known  to  the 
defendant,  or  other  person  designated  in  the  writ,  that 
he  should  be  before  the  court,  at  a  date  specified,  to 
show  cause  why  plaintiff  ought  not  to  have  execution 
of  the  judgment.  Xo  petition  or  complaint  is  neces- 
sary to  obtain  a  scire  facias;  or  perhaps  it  would  be 
more  correct  to  say  that  the  scire  facias  is  a  complaint 

«4  Foster  on  Scire  Facias,  190. 

«5  Foster  on  Scire  Facias,  340;  Blake  v.  Dodomead,  2  Stransre.  77r>; 
Bank  of  Scotland  v.  Fenwick,  1  Ex.  70C;  Xunn  v.  Claxton,  3  Ex. 
715;  State  v.  Robinson,  8  Yerg.  370;  Farris  v.  People.  58  111.  26; 
ralhoun  v.  Adams.  43  Ark.  238;  Lassello  v.  Godfroy.  1  Blackf.  29S; 
VVhitworth  v.  Thompson,  S  Lea,  480;  McVeigh  v.  Old  Dominion 
Bank,  76  Va.  207. 


§  8S  EXECUTION  ON  DORMANT  JUDGMENTS.  324 

as  Mell  as  a  writ.     It  is  tlierefore  essential  that  it  state 
all  the  facts  necessary  to  authorize  the  relief  sought/'^ 

68  Huey  V.  Eedden,  3  Dana,  488;  McVickar  v.  Ludlow,  2. Ohio,  24G; 
Hicks  V.  State,  3  Ark.  313. 

The  followiug  is  the  form  of  the  writ  cmiiloyed  in  IMichigan  in  a 
somewhat  peculiar  and  complicated  case,  and  sustained  by  the  court: 

"State  of  Michigan, ) 

>  ss 
Clinton  county.         (     ' 

"To  the  sheriff  of  the  county  of  Clinton,  greeting: 

"W-hereas,  William  N.  McRoberts  lately,  to  wit,  on  January  9» 
18SG,  in  the  circuit  court  for  the  county  of  Clinton,  by  the  judgment 
of  said  court,  recovered  against  Charles  W.  Lyon  $300  for  his  dam- 
ages, which  he  had  sustained  by  reason  of  the  not  performing  of 
certain  promises  and  undertakings  then  lately  made  by  the  said 
Charles  W.  Lyon  to  the  said  William  N.  Mcltoberts,  and  also  $68.50 
for  his  costs  and  charges  by  him  about  his  said  suit  in  that  behalf 
expended,  whereof  the  said  Charles  W.  Lyon  was  convicted,  as  ap- 
pears to  us  of  record. 

"And  whereas,  of  the  said  damages  the  sum  of  $105  was  lawfully 
and  in  good  faith  assigned  fcy  the  said  William  N.  McRoberts  to  one 
David  G.  Baxter  on  .January  9,  1886,  of  which  the  said  Charles  W. 
Lyon  then  had  due  notice. 

"And  whereas>  on  November  3,  188G,  there  had  been  paid  on  said 
judgment  of  the  said  damages,  the  sum  of  $90,  but  no  part  of  the 
said  $195  assigned  as  aforesaid  to  said  Baxter  had  been  paid,  and 
there  was  then  due  and  unpaid  on  the  said  judgment,  of  the  damages 
aforesaid,  the  sum  of  .$210,  besides  the  costs  and  interest,  in  all 
amounting  to  $217.31. 

"And  whereas,  on  the  said  third  day  of  November  (execution  of 
said  judgment  having  been  theretofore  stayed  by  the  court),  an 
execution  was  duly  issued  out  of  and  under  the  seal  of  the  court, 
to  the  sheriff  of  said  county  of  Clinton  directed,  commanding  him  to 
make  of  the  goods  and  chattels,  lands  and  tenements,  of  said  Charles 
W.  Lyon  and  one  Warner  Bunday,  against  whom,  the  said  Bun- 
day,  judgment  had  been  entered  on  motion  as  the  surety  of  said 
Lyon  on  his  appeal  bond,  the  amount  of  such  judgment  and  costs, 
to  render  to  said  William  N.  McRoberts  in  sixty  days  from  the  is- 
suing of  the  same. 

"And  whereas,  on  December  21,  ISSG,  the  said  Charles  W.  Lyon 
recovered  in  the  circuit  court  for  the  county  of  Clinton,  by  the  judg- 
ment thereof  against  the  said  William  N.  McRoberts,  the  sum  of 
$132.69  for  his  damages,  and  .$22.60  cnsts. 

"And  whereas,  on  DeceinVx'r  22.  1<SS(;.  execution  was  duly  issued 
on  said  judgment  to  the  said  sheriff  directed. 


525  EXECUTION  ON  DORMANT  JUDGMENTS.  §  88 

and  if  it  fails  to  do  this,  it  may,  in  some  of  the  states, 

"Aud  wlioreas,  the  sherilT,  then  Laviu;;  the  two  executions  afore- 
said iu  bis  liauds.  oiroucously,  and  without  auihurity,  thcruuijou  set 
oft'  the  amount  of  said  hist  execution  iu  favoi*  of  said  Charh'S  W. 
Lyou  against  said  ^lelloberts,  aj;ainst  the  said  execution  of  said  Mo 
Itoberls  ayaiust  said  Lyon  and  Buuday,  to  wit,  the  sum  of  $15tJ.U7. 

"And  whereas,  the  said  sheriff  aiso  set  off  against  said  execution 
a  further  suiii  of  $76.02.  being  the  amount  of  au  execution  issued  by 
William  Brunson.  a  justice  of  the  peace  of  the  township  of  Bingham, 
iu  said  county,  on  a  judgment  rendered  by  hlin  In  favor  of  said 
Charles  W.  Lyon  against  said  AVilliain  N.  Mcltoberts,  and,  having 
collected  the  further  sum  of  $G1.24,  returned  said  execution  In  favor 
of  said  William  N.  Mcltuberls  against  said  Charles  W.  Lyon  and  his 
said  surety,  Warner  Bunday,  satislied  in  full,  although  there  was 
then  due  to  said  David  G.  Baxter,  assignee  of  said  William  N.  Mc- 
Roberts,  on  the  said  judgment  and  said  execution,  the  sum  of 
$14LG7  and  interest,  no  part  of  which  has  been  paid  to  him,  aud  in 
which  amount  said  judgment  still  remains  and  Is  unsatisfied. 

"And  now,  ou  behalf  of  tlie  said  William  N.  McRoberts,  in  our 
said  circuit  court,  Ave  have  been  informed  that  although  judgment 
be  thereupon  given,  wnlch  he  avers  still  remains  in  full  force  and 
effect,  in  no  wise  set  aside,  reversed,  paid  off,  or  satistied,  to  the 
amount  of  the  said  $141.67  and  interest,  yet  execution  of  the  said 
judgment  to  the  amount  of  the  said  $141.67  still  remains  to  be  made 
to  him. 

"Therefore,  the  said  William  N.  McRoberts  has  besought  us  to 
provide  him  a  proper  remedy  In  this  behalf;  and  we,  being  willing 
that  what  is  just  iu  this  behalf  should  be  done,  command  you  that 
you  make  known  to  the  said  Charles  W.  Lyon  and  Warner  Bunday, 
his  surety  as  aforesaid,  that  they  appear  before  the  circuit  court  on 
February  15,  1888,  that  being  a  day  in  term  of  said  court,  to  show 
if  they  know  or  have  anything  to  say  for  themselves  why  the  said 
William  N.  McRoberts  ought  not  to  have  execution  against  him  aud 
his  said  surety,  Warner  Buuday,  of  the  balance  of  said  judgment, 
to  "wit:  the  said  sum  of  $14(5.30,  which  Is  yet  unpaid,  according  to 
the  force,  effect,  and  form  of  said  recovery.  If  it  shall  seem  expedi- 
ent for  him  so  to  do,  and  further  to  do  and  receive  what  the  court 
shall  then  and  there  consider  them  in  this  behalf,  and  have  you  then 
and  there  this  writ. 

"Witness,  the  Hon.  Vernon  H.  Smith,  Circuit  Judge,  at  St.  Johns, 
In  said  county,  this  9th  day  of  February,  ISSS. 

CHARLES  H.  PALMER.  Clerk. 
"To  Charles  W.  Lyon  and  Warner  Bunday: 

"Take  notice  that,  ou  filing  an  amended  writ  in  this  cause  (of 
which  within  is  a  true  copy^,  a  rule  was  entered  in  the  book  of  the 
common  rules,  kept  by  the  clerk  of  the  court  at  his  office  in  St. 
Johns,  requiring  you  to  appear  and  plead  to  said  writ  withiu  twenty 


§  88  EXECUTION  OX  DORMANT  JUDGMENTS.  326 

like  an}'  other  confessedly  defective  complaint,  be  de- 
murred to,*'"  and  in  others  may  be  quashed  upon  mo- 
tion.^^  The  failure  to  demur  or  to  move  to  quash  only 
admits  the  facts  stated,  and,  if  they  are  not  such  as  will 
warrant  the  judgment  given,  it  may  be  reversed  on  ap- 
peal or  by  writ  of  error,  as  may  other  judgments  by  de- 
fault based  upon  complaints  which  are  radically  defect- 
ive,**'"* With  respect  to  designating  heirs  and  terre-ten- 
ants, it  has  been  said  that  they  ought  to  be  named  in  the 
writ,'**  or  at  least  that  it  is  preferable  that  they  be  so 
named.  But  there  seems  to  be  no  doubt  that  this  is 
unnecessary.''^  Instead  of  specifically  naming  the 
heirs  and  terre-tenants,  the  writ  may  and  generally 
does  command  the  sheriff  as  follows:  ''That  by  honest 
and  lawful  men  of  your  bailiwick,  you  make  known  to 
the  heirs  of  the  said  C  D,  and  also  to  the  tenants  of  all 
the  lands  and  tenements  in  your  bailiwick,  of  which 
said  C  D,  or  any  person  in  trust  for  him,  was  or  were 
seised  on  the day  of ,  on  which  day  the  judg- 
ment aforesaid  was  given,  or  at  any  time  after.'""^  The 
judgment  must  be  stated  in  the  writ  with  as  much  par- 
ticularity as  would  be  required  in  a  complaint,  though 
we  apprehend  that  neither  in  a  complaint  nor  in  a  scire 

days  after  return-day  of  said  amended  writ  and  notice  of  said  rule 
or  judgment,  etc. 

J.  H.  Fedewa  and  Martha  Strickland, 

Plaintiff's  Attorneys." 
McRoberts  v.  Lyon,  79  Midi.  25. 

67Prather  v.  Manro,  11  Gill  &  J.  261;  Graham  v.  Smith,  1  Blackf. 
413. 

68  Evans  v.  Froeland,  3  Munf.  119. 

6»  Waller  v.  Huff,  9  Tex.  530;  Wray  v.  Williams,  2  Yerg.  301. 

70  Chahoon  v.  Hollenbach,  16  Serg.  &  R.  425,  16  Am.  Dec.  087. 

71  Seawell  v.  Williams.  5  Hayw.  (Tenn.)  280;  Williams  v.  Fowler, 
3  T.  B.  Mon.  316;  Hughes  v.  Wilkinson,  28  Miss.  600. 

72  For  forms  of  writs  of  scire  facias,  see  Tiild's  Forms,  305-335; 
Foster  on  Scire  Facias,  379-388;  Tillinghast's  Forms,  39-58. 


327  EXECUTION  ON  DORMANT  JUDGMENTS.  §  8S 

facias  would  an  immaterial  variance  be  fatal,  if  from 
what  is  set  forth  it  is  clearly  apparent  what  judgment 
is  sought  to  be  revived  by  the  jjroceedingJ^  Of  this 
there  is  as  little  doubt  upon  the  authorities  as  there  is 
in  reason.  Uence,  Avhere  a  claim  was  made  that  a 
scire  facias  did  not  correctly  describe  the  parties  and 
the  judgment,  and  therefore  did  not  continue  its  lien, 
the  court  in  overruling  this  claim  said:  "It  seems  to  us 
that  all  that  is  necessary  here  is  to  ascertain  that  there 
is  such  an  identity  to  these  proceedings  that  one  of 
these  judgments  is  a  revivor  of  the  other,"  '"'*  If  the 
judgment  stated  is  such  that  some  further  action  is 
necessary  after  its  entry  to  make  it  final  and  effective, 
such  additional  action  should  be  shown  by  the  writ.'"' 
If  the  judgment  on  which  execution  is  sought  is  in 
ejectment,  the  writ  must  state  the  term  recovered  by 
such  judgment,  for  otherwise  it  cannot  be  known  that 
such  term  has  not  expired,  and  with  it  the  plaintiff's 
right  to  executionJ^  While  original  actions  of  eject- 
ment were  brought  to  recover  a  term  of  years,  such  is 
not  the  case  in  many  parts  of  the  United  .States.  Such 
an  action,  or,  at  all  events,  an  action  for  the  recovery 
of  real  property,  may  involve  the  fee  as  well  as  a  lesser 
interest  in  the  land.  If  it  does  not  appear  from  the 
scire  facias,  or  the  terms  of  the  judgment  as  stated 
therein,  that  the  recovery  was  of  the  fee,  it  is  still 
necessary  to  show  in  the  writ  what  the  recovery  was 
for,  so  that  it  can  be  seen  therefrom  that  under  it  the 
plaintiff  remains  entitled  to  the  possession  of  the  prop- 
's Wolf  V.  ronnsford,  4  Ohio.  397;  Ward  v.  Prather,  1  J.  J.  Marsh. 
4;  Barron  y.  Tart,  19  Ala.  78. 

74  Landou  v.  Brown,  IGO  Ta.  St.  538;  Wood  v.  Codding,  134  Pa. 
St.  91. 

75  Evans  r.  Freoland,  3  Mnnf.  119. 
TeCrillith  v.  Wilson,  1  J.  J.  Marsh.  209. 


§  88  EXECUTION  ON  DORMANT  JUDGMENTS.  328 

ertj."'  If,  on  the  other  hand,  it  appears  from  the  writ 
tliat  by  the  judgment,  or  the  findings  of  the  court,  the 
plaintiff  was  found  to  be  entitled  to  the  fee,  no  further 
statement  need  be  made  therein  to  show  that  he  re- 
mains entitled  to  a  writ  to  place  him  in  possession^* 

If  any  facts  are  disclosed  by  the  writ  from  which  the 
satisfaction  of  the  judgment  is  inferable,  then  such 
probable  satisfaction  must  be  negatived.  Thus  if  it 
appears  that  a  ca.  sa.  has  been  issued,  and  the  defend- 
ant arrested  thereon,  such  facts  must  be  disclosed  as 
would  establish  i^laintiff's  right  to  execution,  notwith- 
standing such  taking  of  the  person  of  the  defendant  in 
execution.''^  So  if  property  has  been  levied  upon  and 
sold,  but  has  been  lost  to  the  plaintiff  by  reason  of 
some  paramount  title  or  lien,  that  fact  should  be 
stated.«<>  ^ 

It  ought  to  appear  from  the  writ  that  it  is  necessary 
to  entitle  the  plaintiff  to  execution.  If  he  is  not  enti- 
tled to  execution  because  the  judgment  has  become 
dormant  from  lapse  of  time,  that  fact  ought  to  be  sug- 
gested. Hence,  a  scire  facias  is  defective  if  it  fails  to 
state  the  date  of  the  judgment,  because,  in  the  absence 
of  such  statement,  it  does  not  appear  but  plaintiff 
may  have  execution  without  proceeding  by  scire  fa- 
cias.*^ It  is  not,  however,  essential  or  usual  to  state 
that  no  execution  issued  within  a  year  and  a  day.  This 
fact,  as  well  as  the  fact  that  the  judgment  remains  in 
force,  seems  to  be  sufficiently  suggested  by  the  aver- 
ment, "that  although  judgment  aforesaid,  in  form 
aforesaid,  is  given,  execution  nevertheless,  for  the  debt 

"Smith  V.  Stevens,  133  111.  192. 

T8  Wilson  V.  School  Trustees,  144  111.  29. 

79  Dozier  v.  Gore,  1  Litt.  163. 

80  Baxter  v.   Shaw,  28  Vt.   r^QQ. 

81  Hough  V.  Norton,  9  Ohio,  45;  Buckner  v.  Pipes,  5G  Miss.  SCO. 


329  EXECUTION  ON  DORMANT  JUDGMENTS.  §  88 

and  (lamngcs  aforesaid,  remains  to  be  made  to  him," 
the  plaintili".'^-  The  proposition  that  the  phiiutill"  is 
not  entitled  to  scire  facias  unless  tlie  lime  iuterveninir 
after  the  entry  of  the  judgment  is  such  as  to  render  the 
writ  necessary  has  been  vigorously  and,  we,  thiuk,  suc- 
cessfully, conibattcd.  In  a  case  in  which  the  <iuestioii 
arose,  the  statutes  of  the  state  declared  that  the  plain- 
tiff might,  at  any  time  within  a  designated  number  of 
years  specified  therein,  sue  out  scire  facias  to  revive 
his  judgment  and  lien,  A  plaintiff  sued  out  his  writ 
within  less  than  that  time,  and  it  was  objected  that  the 
proceeding  was  unnecessary  and  to  maintain  it  was  to 
permit  any  plaintiff  to  needlessly  subject  the  defend- 
ant to  repeated  writs  and  the  costs  incident  thereto. 
To  this  it  might  well  have  been  answered  that,  what- 
ever was  the  common-law  rule  upon  the  subject,  the 
statutes  in  question  gave  the  plaintiff  an  absolute  right 
to  the  writ  at  any  time  within  the  dates  specified; 
but  the  courts  eiamined  the  question  by  the  aid  of 
the  common-law  authorities  and  reached  the  conclu- 
sion therefrom  that,  independently  of  any  statute,  a 
plaintiff  could  sue  out  this  writ  whether  the  time  with- 
in which  he  was  entitled  to  execution  without  it  had 
<?xpired  or  not,  and  that  the  only  penalty  is,  ''if  the 
plaintiff  sue  out  a  scire  facias  within  a  year  after  the 
judgment,  he  cannot  afterward  have  a  capias  ad  satis- 
faciendum within  the  year,  till  he  hath  a  new  judgment 
in  the  scire  facias."  ^^ 

Where  an  executor  or  administrator  is  sought  to 
be  brought  before  the  court  by  scire  facias,  it  must 
show  the  facts  making  him  answerable  to  the  writ, 

82  Albin  V.  People.  46  111.  372;  Wenvcr  v.  Reose.  6  Ohio,  418. 

83  Roberts  v.  rosing,  Rolle's  Ad.  900;  Lambson  v.  Moffett,  Gl  Md. 
42C;  Wonderly  v.  I^afayette  County,  74  Fed.  Rep.  702. 


§  88  EXECUTION  ON  DORMANT  JUDGMENTS.  330 

and  hence  it  must  suggest  the  death  of  the  judg- 
ment defendant,  and  the  appointment  of  such  execu- 
tor or  administrator.^  Where  still  other  facts  are 
required  to  establish  the  plaintiff's  right  to  execu- 
tion, they  must  be  stated.  Therefore,  a  scire  facias 
against  the  administrator  of  one  of  several  codefend- 
ants  is  demurrable,  unless  it  shows  cause  for  proceed- 
ing against  such  administrator  in  the  absence  of  the 
other  defendants.^^  If  the  object  of  the  proceeding  is- 
to  make  an  administrator  answerable  personally,  the 
scire  facias  must  aver  that  he  has  converted  or  wasted 
the  goods  of  his  intestate  which  came  to  his  hands  "to 
be  administered  upon,  to  the  value  of  said  debt  and 
costs,  with  intent  that  the  execution  aforesaid  should 
not  be  made,"  and  must  notify  him  to  appear  to  show 
cause  why  plaintiff  should  not  have  "execution  against 
him  of  the  debt,  et  cetera,  to  be  levied  out  of  his  own 
proper  goods,  chattels,  lands,  and  tenements."®''  When 
heirs  are  proceeded  against  to  subject  to  execution 
lands  descended  to  them,  it  appears  to  be  unnecessary 
to  describe  such  lands  in  the  scire  facias,**''  though  the 
practice  of  so  describing  them  has  been  commended 
as  the  better  one.*®  Regarded  as  a  pleading,  the  writ 
of  scire  facias  as  sanctioned  by  the  approved  pre- 
cedents is  essentially  defective,  in  not  designating  the 
heirs  or  terre-tenants  who  are  in  effect  made  parties 

84  Walker  v.  Hood,  5  Blackf.  266. 

88  Graham  v.  Sa^ith,  1  Blackf.  414. 

88  Wray  v.  Williams,  2  Yorg.  301.  For  scire  facias  to  enforce  pay- 
ment of  sum  awarded  as  owelty  in  partition,  see  Davis  v.  Norris, 
8  Pa.  St.  122. 

87  Commercial  Bank  v.  Kendall,  13  Smodes  &  M.  278;  Union  Bank 
V.  Meigs,  5  Ohio,  312.  But  in  Tennessee,  before  a  scire  facias  can 
Issue  against  heirs,  it  must  be  suggested  to  the  court  that  certain 
real  estate  has  descended  to  them,  etc.  Hillmhn  v.  Hickerson,  3 
Head,  r)73;  Frierson  v.  Harris,  5  Cold.  146. 

88  Union  Bank  v.  Meigs,  5  Ohio,  312. 


331  EXECUTION  ON  DORMANT  JUDGMENTS.  g  89 

(It'fc'udant,  and  in  not  describing  the  lands  against 
which  the  execution,  when  issued,  will  operate.  This 
defect  is  generally  supplied  by  the  retuiii  to  the  writ. 
From  the  writ  and  return  together,  it  must  always 
appear  who  were  proceeded  against  as  heirs  and  terre- 
tenants,  and  with  respect  to  what  land  they  were  sum- 
moned to  appear.  The  writ  need  not  negative  the 
various  matters  which,  if  existing,  would  constitute 
a  defense,  because  it  is  the  business  of  the  defendant 
to  plead  these  if  he  wishes  to  make  them  available.**'** 
A  scire  facias  seems  to  be  subject  to  amendment  to  the 
same  extent  as  an  original  execution.^* 

§  89.  Serving  the  Writ.— "Although  the  intent  of  the 
scire  facias  is  to  give  the  party  against  whom  execution 
is  about  to  issue  notice  or  warning  thereof,  yet  by  the 
general  practice  it  is  wholly  defeated,  for  the  defend- 
ant may  be  summoned  or  not,  as  the  party  thinks  fit; 
and  indeed,  the  usual  way  is  to  revive  the  judgment 
without  giving  the  party  any  notice."  ^^  "On  the  return 
day  of  the  writ  the  sheriff  either  returns  'scire  feci,' 
that  is,  that  he  has  warned  the  party,  or  'nihil,'  that  is, 
that  the  party  has  nothing  by  which  he  can  warn  him. 
Where  the  sheriff  returns  'nihil,'  the  party  must  sue 

89  Rogers  v.  Denliatn,  2  Grntt.  200. 

90  Thompson  v.  Douglierty,  3  J.  J.  ]\rarsh.  504;  Arripon  v.  Com- 
monwealth, 1  Watts,  374;  Kainey  v.  Commonwealth,  10  Watts,  343; 
Holland  v.  Phillips,  2  Perry  &  D.  33G;  10  Ad.  &  E.  149;  Foster  on 
Scire  Facias,  375;  Buxom  v.  Hoskius,  6  Mod.  2G4;  Rex  v.  Ayro,  1 
Strange,  43;  Rex  v.  Aires,  10  Mod.  2.^9,  note;  Thorpe  v.  -Hook.  1 
Dowl.  P.  C.  r.01;  Klos  v.  Dodd.  4  Dowl.  P.  C.  G7;  Baker  v.  Neaver.  1 
Cromp.  &  M.  112;  3  Tyrw.  233;  Webb  v.  Taylor.  1  Dowl.  &  L.  076; 
Anthony  v.  Humphries,  4  Eng.  170;  Bryant  v.  Smith,  7  Cold.  113; 
Otterback  v.  Patch,  5  App.  Dec.  00;  Whitworth  v.  Thompson.  S  I^a, 
480. 

•1  2  Sellon's  Practice,  197;  Bingham  on  Judgments  and  Execu- 
tions, 120. 


§  S9  EXECUTION  ON  DORMANT  JUDGMENTS.  332 

out  a  second  or  alias  writ  of  scire  facias,  and,  if  the 
slieriff  returns  nihil  also  to  the  second  writ,  and  the 
party  do  not  appear,  there  shall  be  judgment  against 
him."  "-  In  other  words,  two  returns  nihil  are  equiva- 
lent to  one  return  of  scire  feci,"'*  with  this  exception, 
that  when  a  judgment  is  revived  without  any  actual 
notice,  the  defendants  may,  either  on  motion  or  by 
audita  querela,  be  relieved  if  the  revivor  was  im- 
proper.^* While  this  co^structive  service  is  permitted, 
yet  with  respect  to  what  it  does  require  the  law  seems 
to  be  quite  exacting.  If  the  writ  is  served  by  a  sheriff 
to  whom  it  was  not  directed,^^  or  the  service  is  by  giv- 
ing a  copy  to  a  member  of  the  defendant's  family,  the 
service  is  a  nullity.^^  So  if  there  are  two  or  more 
persons  to  be  proceeded  against,  the  service  of  the  writ 
upon  one  of  them  will  not  justify  any  judgment  against 
the  others.^'^     But  the  constructive  service  of  scire 

82  Bingham  on  Judgments  and  Executions,  124. 

»3  Cox  V.  McFerron,  Breese,  10;  Kearns  v.  State,  3  Blackf.  ."34; 
Barrow  v.  Bailey,  5  Fla.  9;  Barratt  v.  Cleydon.  Dyer,  168;  Ratcliffe's 
Case,  Dyer,  172;  Gumming  v.  Eden,  1  Cow.  70;  2  Wm.  Saund.  72  s, 
note  to  Underliill  v.  Devereux;  Cliambers  v.  Carson,  2  Wliart.  9; 
Warder  v.  Taiuter,  4  Watts,  274;  Compher  v.  Anawalt,  2  Watts,  490; 
Bromley  v.  Littleton,  Yelv.  11,3;  Barcock  v.  Thompson,  Styles,  281, 
288;  Sans  v.  People,  3  Gilm.  327;  Andrews  v.  Harper,  8  Mod.  227; 
Kandal  v.  \Vale,  Cro.  Jac.  50;  Besimer  v.  People,  15  111.  440;  Dunlevy 
V.  Ross,  Wright,  287;  Woodford  v.  Bromfield,  1  IMurph.  187;  Choate 
V.  People,  19  111.  03;  Kearns  v.  State,  3  Blaekf.  334;  Brown  v.  Wy- 
gant,  163  U.  S.  618.  But  under  more  recent  rules  and  decisions,  a 
judgment  will  not  be  entered  on  two  nihils  unless  efforts  have  been 
made  to  summon  Ihe  defendants.  Sabine  v.  Field,  1  Cromj^.  &  M. 
466;  Foster  on  Scire  Facias,  355. 

94  Anonymous,  Salk.  93;  Ludlow  v.  Lennard,  2  Ld.  Raym.  1295; 
Wharton  v.  Richardson,  2  Strange,  1075;  Randal  v.  Wale,  Cro.  Jac. 
59;  Wicket  v.  Cremer,  1  Ld.  Raym.  439;  Salk.  264;  12  Mod.  240;  Holt 
V.  Frank,  1  Maule  &  S.  199;  Foster  on  Scire  Facias,  357;  Barrow  v. 
Bailey,  5  Fla.  9. 

95  Kennedy  v.  People,  15  111.  418.  » 

96  McCombs  V.  Feeter.  1  Wend.  19. 

97  Breckenridge  v.  Mellon,  1  How.  (Miss.)  273. 


333  EXECUTION  ON  DORMANT  JUDGMENTS.  §  'JO 

facias  by  two  returns  of  nihil,  or  not  found,  operates 
against  those  defendants  only  whose  names  are  stated 
in  the  writ.  To  a  scire  facias  against  the  heirs  and 
terre-tenants,  ''the  sheriff  returns  either  that  there 
are  none,  or  that  he  has  warned  them  to  appear;  in  the 
latter  case,  if  the  writ  be  general  against  the  terre- 
tenants,  without  naming  them,  .the  sheriff  should  re- 
turn that  he  has  warned  certain  persons,  describing 
them,  being  tenants  of  all  the  lands  in  his  bailiwick, 
or  certain  persons  tenants  of  certain  lands,  and  that 
there  are  no  others."  ^*  The  methods  of  warning  the 
defendants  in  scire  facias  have  been  modified  by  stat- 
utes in  many  of  the  states  where  the  w^it  is  still  em- 
ployed.*'** Unless  the  service  of  the  writ  is  made  in 
some  of  the  methods  authorized  by  law,  the  judgment 
of  revivor  is  inoperative.*****  While  it  is  conceded  that 
the  writ  need  not  be  personally  served,  there  are  doubt- 
less cases  in  which  the  fact  that  it  was  not  so  served 
may  limit  the  operation  of  the  judg-ment  thereon  in 
so  far  as  it  is  relied  upon  to  create  or  continue  a  per- 
sonal liability  against  the  defendant,  as  where  he  was 
beyond  the  jurisdiction  of  the  court  at  the  time.  This 
subject  will  receive  attention  in  a  subsequent  sec- 
tion.*«i  ^ 

§  90.  Proceedings  on  Return  of  the  Writ  -Defenses 
Which  may  be  Made. — if  the  party  summoned  makes  no 
appearance,  judgment  will  be  entered  against  him. 
"So  where  a  scire  facias  is  sued  out  on  a  joint  judg- 

•8  2  Win.  Saund.  72  r;  Gumming  v.  Eden,  1  Cow.  70. 

89  Calloway  v.  Eubank,  4  J.  J.  ^Marsli.  280;  Combs  v.  Youn?.  4 
Yerg.  218,  26  Am.  Dec.  22.">;  Crutchfiold  v.  Stewart,  10  Yerg.  237; 
Rice  V.  Taluiadge,  20  Vt.  378:  Comstock  v.  Holbrook.  IG  Gray,  111. 

100  Simmons  v.  Wood.  6  Yers:.  .518;  People  v.  The  .Judges,  1  Wend. 
19;  Eddy  v.  Coldwell,  23  Or.  1G3,  37  Am.  St.  Rep.  G72. 

101  Post,  §  93  a. 


§  90  EXECUTION  ON  DORMANT  JUDGMENTS.  334 

ment  against  two,  if  it  be  returned  that  one  was  sum- 
moned, and  he  makes  default,  and  that  the  other  has 
nothing,  the  plaintiff  may  have  execution  for  the  whole 
against  him  who  was  summoned  and  made  default. 
So  if  it  be  returned  that  one  of  them  is  dead,  and  the 
other  was  summoned,  and  he  makes  default."  ^**^  If 
the  defendant  appears,  the  plaintiff  may  declare 
against  him.  The  so-called  declaration  is,  however, 
nothing  more  than  a  recital  setting  forth  a  copy  of  the 
writ,  and  praying  for  execution  thereon.-^^^  The  de- 
fendant may  plead  either  in  bar  or  in  abatement.^*** 
"Thus  to  a  scire  facias  on  a  judgment,  the  defendant 
may  plead  nul  tiel  record,  or  payment,  or  a  release,  or 
that  the  debt  and  damages  were  levied  fieri  fadas, 
or  that  his  lands  were  extended  for  them  upon  an 
elegit,  or  his  person  taken  in  execution  on  a  capias  ad 
satisfaciendum.  So  a  terre-tenant  may  plead  in  bar 
to  a  scire  facias  anything  w^hich  shows  his  lands  not 
liable  to  execution,  or  nonjoinder  of  other  terre-ten- 
ants. Hence,  if  the  object  of  the  writ  is  to  subject 
land  to  the  lien  of  a  judgment  against  defendant,  a 
terre-tenant  may  show  that  such  defendant  did  not 
have  any  interest  in  the  property  at  the  entry  of  the 
judgment  which  was  subject  to  execution,  and  that 
he  merely  held  it  in  trust  for  such  terre-tenant.^^^  A 
defendant  may  plead  to  a  scire  facias  anything  which 
has  been  done  under  the  original  judgment  which 
exonerates  him  from  liability."  ^^   With  respect  to  the 

102  Bingham  on  Judgments  and  Executions,  125, 

103  See  Tldd's  Forms,  adapted  to  state  of  New  York,  342;  People  v. 
Society  for  Propagating  the  Gospel,  1  Paine,  652. 

104  Alice  V.  Gale,  10  Mod.  112;  Rex  v.  Hare,  1  Strange,  146. 
106  Roller  V.  Caruthers,  23  Wash.  L.  R.  169. 

108  Foster  on  Scire  Facias,  353;  Phillipson  v.  Tempest,  1  Dowl.  & 
L.  209;  Giles  v.  Hutt,  5  Dowl.  &  L.  387;  1  Ex.  704;  Mounteney  v. 


335  EXECUTION  ON  DORMANT  JUDGMENTS.  §  90 

judgment  itself,  manifestly  the  same  defenses  are 
admissible  as  in  an  action  upon  a  judgment,  and  none 
other.  If  the  judgment  was  by  confession,  it  may  be 
shown  to  have  been  entered  by  a  clerk  who  was  not 
authorized  to  receive  or  enter  it.*^'^  Any  circum- 
stances may  be  proved  which  tend  to  show  that  the 
judgment  is  void,^"*  as  that  the  court  never  obtained 
jurisdiction  of  the  person  of  the  defendant.^'*"  But 
error  or  irregularity  in  the  proceedings  anterior  to  the 
judgment  cannot  be  urged  by  the  defendants  on  scire 
facias.**^ 

"The  principles  of  estoppel,  attached  to  final  adjudi- 
cations, are  as  operative  and  conclusive  in  proceedings 
in  scire  facias  as  in  any  other  cases.  No  defense  can 
be  made  which  existed  anterior  to  the  judgment,"  *" 

Andrews,  Cliff.  G75;  4  Leon.  194;  Glascock  v.  Morgan.  1  Lev.  92; 
Scott  V.  Peacock,  1  Salk.  271;  Holmes  v.  Newlands,  5  Ball  &  B. 
370;  Jefferson  v.  Morton,  2  Wms.  Saund.  6;  Clerk  v.  Withers,  Ld. 
Raym.  1075.  The  pendency  of  a  writ  of  error  is  said  not  to  bar 
a  scire  facias  to  make  an  executor  a  party  to  the  judgment.  Snook 
V.  Mattock.  G  Nov.  &  M.  783^5  Ad.  &  E.  239;  2  liar.  &  W.  188. 

107  Phelps  V.  Hawkins,  6  Mo.  197. 

los  L'lrich  v.  Voneida,  1  Pen.  &  W.  245;  Griswold  v.  Stewart,  4 
Cow.  457. 

109  Clinton  Bank  v.  Hart,  19  Ohio  St.  372. 

110  Anthony  v.  Humphries,  9  Ark.  176;  Barber  v.  Chandler,  17  Pa. 
St.  48,  55  Am.  Dec.  5.33;  Langston  v.  Abney,  43  Miss.  164;  McAfee 
V.  Patterson,  2  Smedes  &  M.  595;  Betancourt  v.  Ebeilin,  71  Ala. 
461;  Strong  v.  Baruliardt,  6  Or.  93. 

111  Freeman  on  Judgments,  sec.  445;  Bowen  v.  Bonner,  46  Miss. 
10;  Aliens  v.  Andrews,  Cro.  Eliz.  283;  Cook  v.  Jones.  Cowp.  727; 
Proctor  V.  Johnson,  2  Salk.  GOO;  Camp  v.  Baker,  40  Ga.  148;  Koon  v. 
Ivey,  8  Rich.  37;  McFarland  v.  Irwin,  8  Johns.  77;  Davidson  v. 
Thornton,  7  Pa.  St.  VzS;  Alden  v.  Bogart.  2  Grant  Cas.  400;  West  v. 
Sutton,  1  Salk.  2;  Ld.  Raym.  853;  Bradford  v.  Bradford,  5  Conn.  127; 
Ileller  v.Joncs,4  Binn.  61;  Sigourney  v.  Stockwell,  4  Mot.  .'.IS;  United 
States  V.  Thompson,  Gilp.  614;  Hubbard  v.  Manning,  Kirby,  256; 
Cardesa  v.  Humes,  5  Serg.  &  II.  65;  Watkins  v.  State,  7  Mo.  S'U; 
Dickson  v.  Wilkinson,  3  How.  57;  Miller  v.  Shackelford,  16  Ala.  95; 
Mathews. V.  Mosby,  13  Smedes  &  M.  422;  Person  v.  Valentine.  13 


§  90  EXECUTION  ON  DORMANT  JUDGMENTS.  336 

nor  wliicli  is  so  inconsistent  with  the  judgment  that 
the  maintenance  of  the  defense  implies  or  establishes 
the  falsity  of  the  facts  upon  which  the  judgment 
rests.^*-  On  the  other  hand,  any  defense  which  may 
be  made  to  an  action  at  law  may  generally  be  made  to 
a  scire  facias  thereon.*^^  Counterclaims  which  have 
not  been  reduced  to  judgment  are  not  available  as  a 
defense,^^^  nor  is  fraud  in  its  procurement.  If  there 
was  such  fraud,  the  defendant  should  prosecute  some 
suit  or  motion  to  annul  the  judgment  or  restrain  it» 
enforcement.^*®  Whatever  defenses  the  defendant  has 
he  must  speciallyplead — he  cannot  present  them  under 
a  general  denial.****  The  principle  of  res  judicata  is, 
however,  on  scire  facias,  as  in  other  cases,  confined  to 
the  parties  to  the  suit,  and  their  privies  in  person  or 
in  estate.**''  Of  course,  the  defendants  may  show  that 
the  judgment  has  been  satisfied,  or  that,  from  some 
cause  occurring  since  the  rendition  of  the  judgment, 

Smedes  &  M.  551;  Duncan  v.  Harjrove,  22  Ala.  150;  Smith  v.  Eaton, 
36  Me.  298,  58  Am.  Dec.  746;  Ferebee  v.  Doxey,  6  Ired.  448;  Thomas 
V.  Williams,  3  Dowl.  P.  C.  G.S5;  Baylis  v.  Hay  ward,  5  Nev.  &  M. 
613;  4  Ad.  &  E.  256.  One  who  fails  to  plead  his  Infancy  In  the  or- 
iginal action  cannot  plead  it  against  the  scire  facias.  Kemp  v. 
Cook,  6  Md.  .305.  The  same  rule  applies  to  a  defendant  who  ne- 
glected to  plead  his  discharge  in  insolvency.  Moore  v.  Garretson, 
6  Md.  444. 

112  Smith  V.  Eaton.  36  Me.  298,  58  Am.  Dec.  746;  I'ollard  v.  Eck- 
ford,  50  Miss.  631;  Dowling  v.  McGregor,  91  Pa.  St.  410;  May  v. 
State  Bank,  2  Rob.  (Va.)  50,  40  Am.  Dec.  726;  Koone  v.  Ivey,  8 
Rich.  37. 

113  McLeod  V.  Williams,  122  N.  C.  451. 

114  Jenkins  v.  Anderson  (Pa.).  11  Atl.  558. 

115  Bruno  v.  Oviatt,  48  La.  471. 

116  Wonderly  v.  Lafayette  County,  77  Fed.  Rep.  665. 

117  Griswold  v.  Stewart,  4  Cow.  4.59.  In  Massachusetts,  a  judg- 
ment by  default  against  a  person  summoned  as  a  trustee  is  not 
final,  and  he  may,  on  scire  facias,  show  that  he  was  not,  in  fact, 
chargeable.    Brown  v.  Neale,  3  Allen,  74,  SO  Am.  Dec.  53. 


337  EXECUTION  ON  DORMANT  JUDGMENTS.  §  lO 

the  plaintiff  is  no  longer  entitled  to  execution."'*  ^ut 
upon  the  subject  of  jurisdiction  there  is  an  irreconcil- 
able conflict  of  opinion,  whether  want  of  it  may  bt* 
proved  in  opposition  to  the  implied  findings  or  express 
recitals  upon  the  subject  contained  in  the  record.  The 
better  opinion  is,  that  where  there  is  some  ground 
for  avoiding  a  judgment  by  some  motion  in  that  action 
or  by  some  indei)endent  proceeding,  such  motion  or 
proceeding  should  be  resorted  to,  and  that  the  ques- 
tion cannot  be  litigated  upon  scire  facias.  There  is  no 
doubt  that,  if  the  want  of  jurisdiction  is  apparent  on 
the  Ciice  of  the  record,  it  may  be  urged  as  a  defense 
to  a  scire  facias.^*"  But  if  the  record  affirmatively 
shows  jurisdiction,  such  showing  cannot  be  dis- 
l)roved. '^'**  To  this  rule  an  exception  exists  in  Ne- 
braska when  the  return  of  process  shows  it  to  have 
been  left  at  the  defendant's  residence,  in  which  event 
he  is  at  liberty  to  prove,  in  answer  to  a  scire  facias, 
that  the  place  named  was  not  his  residence  at  the  time 
of  such  service. ^^^ 

If  the  court  pronouncing  the  original  judgment  had 
jurisdiction,  no  defenses  which  might  have  been  made 
in  that  action  can  be  urged  on  scire  facias.-*^^^  There 
may  also  be  instances  in  which  defenses  are  shut  off, 
although  they  could  not  have  been  urged  in  the  origi- 
nal action,  as  where  the  plaintiff  therein  sued  upon  a 

118  Brown  v.  Morange,  108  Ta.  St.  09;  Seymour  v.  Ilubert,  S3  Pa. 
St.  34<}. 

119  Frankel  v.  Satterfiekl.  0  Iloust.  201;  Harper  v.  Cunninsliain,  8 
App.  1).  C.  430;  Lee  v.  Watkius.  3  Abb.  P.  243;  13  How.  Pr.  170. 

120  Prince  v.  Dickson,  39  S.  C.  747. 

121  Haynes  v.  Aultman,  36  Neb.  257. 

122  Harris  v.  Hart,  21  111.  App.  348;  Eddy  v.  Coldwell.  23  Or.  103, 
37  Am.  St.  Rep.  072;  Campboll's  Appeal,  118  Pa.  St.  344.  4  Am.  St. 
Rep.  509;  I>aiier  v.  Ketuer,  102  Pa.  St.  2G5,  42  Am.  St.  Rep.  833. 

Vol.  I.— '22 


§  90  EXECUTION  ON  DORMANT  JUDGMENTS.  338 

negotiable  instrument  of  wliicli  he  was  an  endorsee 
before  maturity'  in  good  faith  and  for  value,  and 
he,  after  recovering  judgment,  transferred  it  to  his 
indorser.  The  defendant  is  not  permitted  to  claim,  in 
answer  to  a  scire  facias,  that  he  had  a  defense  to  the 
original  action  which  he  was  prevented  from  making 
by  the  indorsement  of  the  note  to  the  plaintiff.*-^  A 
terre-tenant  cannot  successfully  defend  a  scire  facias 
on  the  ground  that  he  purchased  the  land  sought  to 
be  charged  without  having  any  actual  notice  of  the 
judgment.^-^*  There  are  cases  which  declare,  in  gen- 
eral terms,  that  terre-tenants  and  other  strangers  to 
the  judgment  may  falsify  it  for  fraud  or  irregularity  in 
its  rendition/^^  ^  But  we  apprehend  that  the  doctrine 
of  these  decisions  must  be  confined  to  such  strangers 
as  were  prejudiced  by  the  judgment  when  it  was  en- 
tered. For  if  the  defendant  was  properly  before  the 
court  so  as  to  give  it  jurisdiction,  he  could  not  attack 
the  judguient  collaterally  for  fraud  and  irregularity, 
and  certainly  he  could  not,  after  judgment,  transmit  to 
others  a  right  which  he  did  not  possess,  or  which  he 
had  forfeited  through  his  own  want  of  diligence.*^^  *" 
But  where  the  original  judgment  was  procured  or  suf- 
fered with  the  view  of  prejudicing  third  persons,  they 
may  be  allowed  to  avoid  it  on  scire  facias;  ^^  ^  for 
"whenever  a  judgment  or  decree  is  procured  through 
the  fraud  of  either  of  the  parties,  or  by  the  collusion 
of  both,  for  the  purpose  of  defrauding  some  third  per- 

123  Suppler  V.  Haefmann,  161  Pa.  St.  33. 

123a  Ridge  V.  Prather,  1  Blackf.  401. 

123b  Proctor  V.  Johnson,  1  Ld.  Pvaym.  669;  2  Salk.  600;  Ulrich  v. 
Voneida,  1  Penr.  &  W.  250;  Griswold  T.  Stewart,  4  Cow.  458. 

123C  Hellor  V.  .Tones,  4  Binn.  61. 

123d  Philipson  v.  Earl  of  Egremont,  6  Q.  B.  587:  14  E.  T.  Q.  B.  2.5: 
Bosanqnet  v.  Graham,  6  Q.  B.  601.  note;  Dodgson  v.  Scott,  2  Ex 
457;  6  Dowl.  &  L.  27;  17  L.  J.  Ex.  321. 


:VM)  EXECUTION  ON  DORMANT  JUDGMENTS.  §  91 

son,  ho  may  escape  from  the  injury  thus  attempted 
by  showiuj^,  eveu  iu  a  collateral  proceediug,  the  fraud 
or  collusion  by  which  the  judgment  was  obtained."  ^^  • 

§  91.  Time  in  which  the  Writ  must  be  Sued  out.— In 
England,  a  scire  facias  cannot  be  sued  out  to  revive  a 
judgment,  except  within  twenty  years,  unless  in  the 
meantime  some  payment  thereon  has  been  made,  or 
«ome  written  acknowledgment  of  the  continuing  force 
of  the  judgment  has  been  given,  in  which  cases  the 
scire  facias  must  be  sued  out  within  twenty  years  after 
the  last  payment  or  acknowledgment.*'*  If  the  judg- 
ment be  less  than  seven  years  old,  the  writ  issues  of 
course;  but  after  that  period,  and  before  the  judgment 
is  ten  years  old,  "a  side  bar  or  treasury  rule  must  be 
obtained.  If  the  judgment  be  between  ten  and  fifteen 
years  of  age,  a  scire  facias  is  not  allowed  without  a 
motion  in  term,  or  a  judge's  order  in  vacation.  If  be- 
tween fifteen  and  twenty  years  old,  there  must  first  be 
a  rule  to  show  cause."  In  the  United  States,  the  stat- 
utes of  limitation  applicable  to  proceedings  on  scire 
facias  prescribe  different  terms  in  the  different 
states.*""'  Such  a  limitation  may  also  be  implied  from 
statutory  provisions  restricting  the  time  within  which 
actions  may  be  prosecuted  upon,  or  writs  issued  for 
the  enforcement  of,  judgments.  It  must  necessarily 
'follow,  if  the  right  to  enforce  a  judgment  has  expired 
from  any  cause,  that  it  must  have  carried  with  it  the 

i2ne  Freeman  on  Judgments,  sec.  336. 

12*  Foster  on  Scire  Facias,  14,  29. 

1-5  Mulllken  v.  Diivall,  7  Gill  &J.  3.");  Clark  v.  Sexton,  23  Wond. 
477;  I.angliam  v.  Grigsby,  9  Tex.  493;  Fursht  v.  Overdeer,  3  W^atts 
&  S.  470;  Green's  Appeal.  G  Watts  &  S.  327;  Code  of  Ala.,  sec.  2924; 
Lansing  v.  Lyons,  9  Johns.  84;  Bank  of  New  York  v.  Eden,  17 
Johns.  105. 


§  92  EXECUTION  ON  DORMANT  JUDGMENTS.  34a 

right  to  scire  facias.*"^  Hence,  if  a  statute  requires 
the  presentation  of  a  judgment  as  a  claim  against  the 
estate  of  a  decedent  within  a  time  specified,  and  such 
presentation  is  not  made,  the  right  to  a  scire  facias 
thereon  is  thereby  lost.^''^ 

§  92.  An  Irregular  or  Erroneous  Scire  Facias,  like  an 
irregular  or  erroneous  execution,  is  voidable,  but  not 
void.  If  the  irregularity  is  not  taken  advantage  of  in 
some  appropriate  method,  the  judgment  of  revivor  is 
valid.  It  cannot  be  collaterally  assailed,  and  will  sup- 
port title  derived  from  an  execution  issued  by  its  au- 
thority.*'** Thus,  if  a  plaintiff  has  become  bankrupt^ 
and  the  judgment  has  thereby  vested  in  his  assignee, 
so  that  any  proceeding  to  revive  it  should  be  prose- 
cuted by  him,  but  it  is,  notwithstanding,  prosecuted  by 
the  plaintiff,  or,  after  his  death,  by  his  executor  or  ad- 
ministrator, without  objection  on  the  part  of  the  de- 
fendant, the  latter  cannot  avoid  the  effect  of  the  re- 
vivor by  urging  this  irregularity.^^®  A  scire  facias 
and  a  judgment  thereon  may,  however,  be  so  irregular 
as  to  be  void,  or,  at  least,  as  not  to  affect  all  the  parties 
intended  to  be  affected  thereby.  If  a  scire  facias  is  to 
revive  a  judgment  so  that  it  shall  continue  to  be  a  lien 
on  the  lands  of  the  defendant^  it  must  so  describe  the 
judgment  sought  to  be  revived  that  there  can  be  no 
reasonable  doubt  upon  the  subject;  and  if  the  statute 
prescribed  acts  to  be  done  for  the  purpose  of  imparting 
notice  to  persons  who  may  deal  with  the  lands  to  be  af- 
fected, those   acts   must   be   substantially  performed. 

128  Jerome  v,  Williams,  13  Mich.  521;  Peters  v.  Vawter,  10  Mont. 

201. 

127  Scruj?c:s  v.  Tutt,  23  Kan.  181. 

i28jaclvSon  V.   Robins,   16    .Tohus.   .^)37:    .Tackson   v.   Dolaney,   13 
Johns.  rj37,  7  Am.  Dec.  403:  Jackson  v.  Bartlott,  8  Johns.  365. 

129  Brown  v.  Wygant,  163  U.  S.  018. 


341  EXECUTION  ON  DORMANT  JUDGMENTS.  §  9'Ja 

nonce,  if  the  statute  declares  that,  when  a  judgment 
shall  be  revived  by  scire  facias  or  otherwise,  a  note 
thereof  shall  be  made  in  the  proper  judgment  docket 
in  the  place  where  the  other  entries  in  the  cause  may- 
have  been  made,  if  the  judgment  is  not  correctly  re- 
cited in  the  scire  facias,  and  no  note  is  made  in  the 
judgment  docket,  the  proceeding  cannot  impart  con- 
structive notice  to  any  one,  and  may  therefore  be  un- 
availing against  subsequent  bona  fide   purchasers.^^'* 

§  92  a.  The  Judgment  Rendered  upon  Scire  Facias 
must  be  consonant  with  the  relief  sought.  This  relief 
is  nothing  more  than  that  ijlaintilf  be  allowed  the 
means  necessary  to  make  a  pre-existing  judgment 
effectual  and  productive.  No  new  recovery  can  be 
had,  and  if  a  judgment  is  entered  up  in  the  nature  of 
an  original  judgment,  or  to  the  effect  that  plaintiff  re- 
cover a  certiiin  sum  of  money  or  a  designated  parcel  of 
real  or  personal  property,  it  is  void.-"^^^  The  "entry 
should  be  that  the  plaintiff  have  execution  for  the 
judgment  mentioned  in  the  scire  facias,  and  for 
costs."  *^^  The  effect  of  a  proceeding  by  scire  facias  in 
Pennsylvania  has  been  thus  described  by  the  supreme 
court  of  that  state:  "A  scire  facias  to  revive  a  judg- 
ment post  annum  et  diem  is  but  a  continuation  of  the 
original  action,  and  the  execution  thereon  is  an  execu- 
tion  in  the  former  judgment.  The  judgment  on  the 
scire  facias  is  not  a  new  judgment  giving  vitality  only 
from  that  time,  but  it  is  the  revival  of  the  original 
judgment,  giving,  or  rather  continuing,  the  vitality  of 

ISO  "Wooniaii's  Appeal.  110  Ta.  St.  2o. 

131  LAvell  V.  MoCurdy,  77  Va.  7().*?:  Camp  v.  Gainer,  8  Tex.  372: 
Bullock  V.  Ballew.  9  Tex.  408:  Tnsrahani  v.  Champion,  S4  Wis.  235. 

132  Vredeuburyli  v.  Suyder,  0  lowa,  39;  Denegre  v.  Ilauu,  13  Iowa, 
240. 


§  93  EXECUTION  ON  DORMANT  JUDGMENTS.  S42 

the  original  judgment  with  all  its  incidents,  from  the 
time  of  its  rendition.  This  is  clear  on  authority. 
Thus  in  Bouvier's  Law  Dictionary,  p.  380,  he  says,  cit- 
ing 1  Term  Rep.  388,  and  2  Saund.  72,  that  a  scire 
facias  is  a  judicial  writ,  founded  on  some  record,  and 
requiring  defendant  to  show  cause  why  the  plaintiff 
should  not  have  advantage  of  such  record.  When 
brought  to  revive  a  judgment  after  a  year  and  a  day,  it 
is  but  the  continuation  of  the  original  action.  Thus  in 
4  Harr.  (Del.)  397,  and  3  Pet.  300,  it  is  ruled  that  a  scire 
facias  to  renew  a  judgment  is  only  a  continuation  of 
the  former  suit,  and  not  an  original  proceeding.  It 
would  be  easy  to  multiply  authorities,  if  a  fact  so  plain 
and  familiar  needed  their  aid.  In  England  the  judg- 
ment on  the  scire  facias  is,  that  the  original  judgment 
be  revived.  Here  the  amount  of  the  debt  is  ascer- 
tained, and  judgment  given  for  the  sum  due;  and  this 
unfortunate  departure  from  precedents  has  given  rise 
to  the  erroneous  notion  in  the  minds  of  some  members 
of  the  profession  that  the  judgment  on  the  scire  facias 
is  a  new  and  distinct  judgment,  and  not,  as  it  really  is, 
nothing  more  than  the  revival  of  the  original  judg- 
ment, the  sum  being  ascertained  for  which  execution 
may  issue.  If  we  pay  any  regard  to  precedent,  the  exe- 
cution ought  always  to  be  issued  on  the  original  judg- 
ment, and  not,  as  is  sometimes  ignorantly  done,  on  the 
judgment  on  the  scire  facias — an  irregularity  which 
ought  never  to  have  been  tolerated  by  the  courts."  *^* 

§  93.  Second  Scire  Facias. — If  the  plaintiff  who 
sues  out  a  scire  facias  to  reviVe  a  judgment  does  not 
proceed  upon  it  within  a  year  and  a  day,  it  is  a  discon- 
tinuance of   it,  and  the  plaintiff    must  commence  by 

133  Irwin  V.  Nixon's  Heirs,  11  Pa.  St.  419,  51  Am.  Dec.  559. 


343  KXECL'TION  UN   DORMANT  JUDGMENTS.  §  y3a 

scire  facias  de  novo.  So,  if  lie  does  not  sue  out  execu- 
tion on  a  judgment  on  scire  facias  within  a  year,  he 
must  revive  it  again.*^^ 

§  93  a.  The  Effect  of  a  Judgment  Resulting  from  a 
Proceeding  by  Scire  Facias  should  be  determinable  by 
considering  the  character  of  these  proceedings,  the 
questions  involved  in  them,  and  the  method  taken  to 
acquire  jurisdiction  of  the  parties.  If  an  answer  is 
filed  and  the  issues  presented  by  it  are  tried,  the  find- 
ings and  judgment  thereon  are  res  judicata  to  the 
same  extent  as  the  findings  and  judgment  in  any  other 
controversy.  Hence,  if  the  defendant  pleads  that  the 
judgment  has  been  satisfied,  or  that  he  has  been  re- 
leased therefrom  by  any  other  means,  but  the  court,  de- 
termining this  i^lea  to  be  untrue,  enters  judgment  of 
revivor,  the  defendant  is  estopped  from  again  contend- 
ing that  the  original  judgment  had  been  paid  or  that 
he  had  been  released  therefrom  before  such  revivor.*^'* 
A  judgment  of  revivor  is  impliedly,  at  least,  an  adjudi- 
cation that  there  is  a  judgment  to  be  revived,  and  that 
it  is  proper  to  issue  execution  thereon.  Nevertheless, 
it  is  doubtful  whether  it  does  establish  a  pre-existing 
valid  judgment,  or  is  anything  more  than  permission 
to  issue  execution  on  that  judgment  with  like  effect  as 
if  it  had  been  issued  before  there  was  any  necessity  to 
apply  for  this  writ.  Therefore  it  has  been  held  that  if 
the  original  judgment  is  void  upon  its  face,  or  appears 
to  be  so  by  the  record  or  judgment-roll,  this  objection 
can  be  urged  after  its  revivor  by  scire  facias.*"** 

IS*  Vaiulerhcydon  v.  Gardonier,  9  .Tolins.  79;  Foster  on  Scire  Fa- 
cias,  27. 

135  Greer  v.  Major  (Mo.),  21  S.  W\  4S1. 

136  Fraukel  v.  Satterlield,  9  Iloust.  201. 


§  93a  EXECUTION  ON  DORMANT  JUDGMENTS.  344 

In  some  instances  others  than  the  parties  to  the 
judgment  and  the  scire  faciass  may  be  bound  thereby, 
as  where  the  object  is  to  keep  alive  a  lien  against  real 
estate  which  has  been  sold  and  a  conveyance  taken, 
but  the  grantee  has  never  recorded  his  conveyance  nor 
taken  possession  of  the  jjroperty,  and  hence  is  not 
made  a  party  to  the  proceeding  for  revivor,  because 
plaintift'  had  no  notice  of  his  acquisition  of  title.  Un- 
der such  circumstances,  the  holder  of  the  secret  con- 
veyances is  bound,  though  not  a  party,^^'^ 

We  have  shown  that  a  revivor  is  ordinarily  accom- 
Iplished  without  giving  any  actual  notice  to  the  defend- 
ant or  any  other  interested  party.  This  course  of  prac- 
tice necessarily  invites  an  abuse  of  the  proceeding  by 
entering  judgments  of  revivor  against  persons  who 
have  no  notice  of  the  scire  facias,  and  who,  if  they  had 
such  notice,  might  be  able  to  present  a  sufficient  de- 
fense thereto.  We  assume,  though  it  is  not  so  dis- 
tinctly stated  in  any  of  the  decisions  coming  within  our 
observation,  that  persons  who  have  been  subjected  to 
such  judgments  of  revivor,  without  any  actual  oppor- 
tunity to  resist  them,  must  be  entitled  to  relief  upon 
motion  promptly  made  after  obtaining  knowledge 
thereof.  Where  a  judgment  of  revivor  was  based  on 
an  unauthorized  appearance  of  an  attorney,  it  was 
vacated  on  motion  of  the  defendant.^^*  If  the  judg- 
ment is  revived  against  the  defendant  by  collusion 
with  him  after  it  is  barred  by  the  statute  of  limita- 
tions, third  persons  whose  interests  antedated  such  re- 
vivor are  not  bound  thereby. ^^^ 

Whether  a  revivor  by  scire  facias  prolongs  the  life 

137  Lyon  V.  Cleveland,  170  Pa.  St.  611,  50  Am.  St.  Rep.  620. 

138  Mendenhall  v.  Robinson,  56  Kan.  633. 

139  Ayre  v.  Burke,  82  Va.  338. 


345  EXECUTION  ON  bOUMANT  JUUGMENT.S.  §  93a 

of  the  oi'i«;iiial  jiulj^iiicnt  is  a  «iueslion  which  we  think 
has  uot  yet  been  fully  and  fairly  cousideieJ.  If  it  does, 
then  the  statute  of  limitations  to  which  the  judgment 
is  subject  ceases  to  run  ui)on  such  revivor,  and,  in  any 
subse(iuent  action  npon  the  judgment,  such  statute 
must  be  computed  as  commencing  to  oi)erate  at  the 
"date  of  the  revivor,  and  not  at  the  date  of  the  entry  of 
the  original  judgment.  This  question  has  been  several 
times  presented  to  courts,  which,  reasoning  from  the 
assumption  that  a  scire  facias  is  a  new  action  and  the 
judgment  thereon  a  new  judgment,  have  maintained 
that  an  action  upon  the  original  judgment  may  be  sus- 
tained, notwithstanding  the  plea  of  the  statute  of  limi- 
tations, unless  the  full  period  prescribed  by  such  stat- 
ute had  intervened  after  the  entry  of  the  judgment  of 
revivor.^"*®  In  some  instances  this  results  in  persons, 
who  have  ceased  to  be  residents  of  the  state  in  which 
judgment  had  been  recovered  against  them,  having  the 
judgment  kept  alive  by  revivors  entered  against  them 
while  nonresidents  or  absent  from  the  state,  and  with- 
out any  other  service  of  process  upon  them  than  that 
involved  in  the  two  returns  of  nihil.^^*  But  a  scire 
facias  is  not  a  new  action;  the  judgment  therein  is  not 
a  new  judgment;  nor  is  it  proper  to  enter  any  judgment 
other  than  that  the  plaintiff  have  execution  upon  the 
judgment  previously  existing.''*^  Such  being  the  case, 
we  do  not  see  how  any  subsequent  action  can  be 
<leemed  an  action  upon  the  judgment  of  revivor,  nor 

140  Fagan  v.  Bentley,  32  Ga.  '>?A;  Lambson  v,  Moffatt.  Gl  Md.  429; 
Walsh  V.  Bosso,  16  Mo.  App.  231;  Kratz  v.  Preston,  52  Mo.  App.  251; 
Wonderly  v.  Lafayette  County,  74  Fed.  Rep.  70G;  Farrell  v.  Gleason, 
11  CI.  &  F.  700:  Fan-en  v.  Beresford,  10  CI.  &  F.  702. 

1*1  Kratz  V.  Freston,  52  Mo.  App.  2."il;  Faiian  v.  Bentley,  32  Oa. 
534. 

1*2  Rogers  V.  Uulliugswortb,  95  Teun.  3-")7;  lugrahani  v.  Champion, 
84  Wis.  235. 


§  03ii  EXECUTION  ON  DORMANT  JUDGMENTS.  346 

how  that  judgment  can  affect  the  running  of  the  stat- 
ute of  limitations  against  the  original  judgment,^ ^^  un- 
less upon  the  ground  that  the  judgment  of  revivor  es- 
tablishes the  continued  existence  of  the  debt  and  oper- 
ates as  an  aclvnowledgment  or  new  promise  to  pay  it;, 
and  none  of  the  decisions  are  grounded  upon  this  the- 
ory. 

If  we  assume  that  the  judgment  of  revivor  is  a  new 
judgment,  then  it  is  essential  that  the  court  pronoun- 
cing it  have,  at  that  time,  jurisdiction  of  the  parties, 
and  this  it  cannot  have  if  they  are  not  within  the  ter- 
ritorial jurisdiction  of  the  court  and  do  not  voluntarily 
submit  themselves  to  it.  It  hence  follows  that  a  judg- 
ment of  revivor  can  never  create  nor  extend  any  per- 
sonal liability  against  one  who  is  not  a  resident  of  the 
state  wherein  the  judgment  is  entered  and  has  not 
been  personally  served  with  notice  thereof,  though  he 
was  such  resident  at  the  time  of  the  entry  of  the  orig- 
inal judgment,  and,  if  sued  upon  that  judgment  in  the 
state  of  which  he  has  become  a  resident,  his  plea  of 
the  statute  of  limitations  cannot  be  affected  by  the 
judgment  of  revivor.  In  other  words,  a  judgment  of 
revivor  based  upon  constructive  service  has  no  extrater- 
.ritorial  force  in  creating  or  extending  a  personal  lia- 
bility.*** In  so  far  as  a  judgment  is  intended  to  oper- 
ate in  rem,  the  rule  is  otherwise.  A  judgment  on  scire 
facias  may  be  rendered  which  will  be  binding  on  the 
property  situate  within  the  state,  though  its  owner  and 
the  defendants  are  not  within  the  state,  and  the  service 
of  the  process  or  writ  is  constructive  only. 


145 


143  Infrraham  v.  Champion,  84  Wis.  235. 

144  Robb  V.  Anderson,  43  111.  App.  57.5;  Hepler  v.  Davis,  32  Neb. 
556,  29  Am.  St.  Rep.  457:  Betts  v.  Johnson,  68  Vt.  549;  Owens  v. 
McCoskey,  161  U.  S.  642. 

145  Bertron  v.  Stuart,  43  La.  Ann.  1171. 


347  EXECUTION  ON  DORMANT  JUDGMENTS.  §§  94,  95 

§  94.  Form  of  Execution.— When  the  judgment  has 
been  revived  by  scire  facias,  the  form  of  the  execution 
must  be  changed  to  correspond  to  the  clianged  state  of 
the  record.  It  should  show  the  judgment  on  the  sc;r«' 
facias  as  well  as  the  original  judgment.  The  fieri  fa- 
cias should  refer  to  and  profess  to  be  founded  on  the 
judgment  in  the  suit  by  scire  facias;  and  this  is  true 
whether  the  scire  facias  was  necessary  or  "entirely 
supererogatory."  **^^  While  the  execution  should  pur- 
port to  issue  on  the  original  judgment,  yet  if  an  error 
is  committed  in  this  respect  by  issuing  it  on  the  judg- 
ment of  revivor,  this  is  a  mere  irregularity  which  can- 
not affect  the  title  of  a  purchaser  thereunder.**'' 

§  95.  Motion  and  Notice  as  a  Substitute  for  Scire 
Facias. — it  is  obvious  that  the  objects  sought  and  ac- 
complished by  the  writ  of  scire  facias,  in  reference  to 
the  revivor  of  dormant  judgments,  could  be  as  readily 
obtained  by  a  mere  motion  and  order  in  the  original 
suit.  Practically,  a  writ  of  scire  facias  is  nothing  be- 
yond a  notice  to  parties  in  interest  that  the  applicant 
will,  at  a  stated  time,  apply  for  a  writ  of  execution, 
which  notice  is  accompanied  by  a  statement  of  the 
grounds  upon  which  the  application  will  be  based.  A 
notice  prepared  and  signed  by  the  plaintiff  or  his  at- 
torney, and  served  by  copy  on  the  defendants  in  the 
suit,  if  living,  or  on  their  representatives,  if  dead, 
would  accomplish  ever^-  useful  purpose  accomplished 
by  a  writ;  while  the  order  of  the  court,  made  after 
hearing  the  motion  specified  in  the  notice,  would  afford 
relief  as  adequate  as  could  be  granted  by  a  judgment 

i<6  Richardson  v.  McDoujrnll,  19  Wend.  SO;  Davis  v.  Norton,  1 
BiuR.  13.3;  Hall  v.  Clafjett,  G3  Md.  57. 

i*T  Scherrer  v.  Caneza,  33  La.  Ann.  314;  G rover  v.  Boon,  124  Pa. 
St.  399. 


§  96  EXP:cUTION  ox  dormant  judgments.  348 

on  scire  facias.  Proceedings  by  scire  facias  to  revive 
dormant  judgments  are  gradually  becoming  obsolete, 
though  the  writ  is  still  employed  in  about  one-half  of 
the  states  of  this  Union.  In  those  states  where  this 
writ  is  not  in  use,  the  relief  which  it  formerly  afforded 
is  obtained  on  motion,  petition,  or  pleading  supple- 
mentary to  the  judgment.  Sometimes  the  course  pre- 
scribed by  statute  is  by  the  issuing  of  a  summons  out 
of  the  court  wherein  the  judgment  wa«  entered,  which 
writ  accomplishes  the  same  purpose  as  a  scire  fa- 
cias.^** Unlike  the  proceeding  by  scire  facias,  these 
statutory  proceedings  usually  include  some  notice  to 
be  personally  served  on  the  parties  to  be  affected,  if 
such  service  can  be  made  within  the  state."^  Some 
of  these  statutes  make  special  provisions  for  the  re- 
vivor of  judgments  in  favor  of  persons  who  have  pur- 
chased property  at  sales  made  thereunder,  which  has 
been  lost  to  them  through  some  irregularity  in  the  pro- 
ceedings concerning  the  sale,  or  by  the  reversal  of  the 
judgment,  or  because  the  property  was  not  subject  to 
execution  and  sale.  Under  a  statute  of  this  character, 
a  purchaser  of  property  which  proves  to  be  exempt 
from  execution  may  have  the  judgment  revived  in  his 
favor.*"® 

§  96.  On  Death  of  One  of  the  Parties.— When  a  sole 
plaintiff  has  died  after  final  judgment,  the  administra- 
tor, or  other  person  authorized  to  represent  the  de- 
ceased, may  apply  to  the  court,  show  the  death  of  the 
deceased  and  the  appointment  of  the  applicant,  and 

148  Eddy  V.  Cold  well,  23  Or.  163.  37  Am.  St.  Rep.  072:  Chester  etc. 
Co.  V.  Marshall,  40  S.  C.  59;  Lawton  v.  Perry,  40  S.  C.  2r)5. 

i49Selders  v.  Boyle  (Kan.).  49  Pac.  320:  Northern  Pac.  Ry.  v. 
Bender,  13  Mont.  432;  Eddy  v.  Coldwell.  23  Or.  1G3,  37  Am.  St.  Rep. 

672. 

160  Union  N.  Bank  v.  Beardsley,  10  Utah,  404. 


349  EXECUTION  ON  DORMANT  JUDGMENTS.  §  97 

procure  an  order  entillin^  him  to  sue  out  aud  control 
the  execution;  or,  in  some  states,  the  executor  or  ad- 
ministrator may  obtain  execution  on  presenting  his 
letters  testamentary  or  of  administration  to  the  clerk 
of  the  court/^'  ^o,  on  the  death  of  defendant,  his  rep- 
resentatives mny  on  motion  be  brouj^ht  before  the 
court  to  show  cause  why  execution  ought  not  to  issue; 
and,  in  some  states,  where  the  judgment  is  for  the  re- 
covery of  real  or  personal  property,  or  for  the  enforce- 
ment of  a  lien  thereon,  execution  may  issue  notwith- 
standing the  death  of  defendant,  and  without  leave  of 
the  court.  The  provisions  in  the  different  states  on 
this  subject  are  so  diverse  that  we  shall  not  attempt  to 
make  any  detailed  statement  of  them. 

§  97.  Execution  on  Judgment  Dormant  by  Lapse  of 
Time. — When  a  jn(l_i;iiieut  has  become  dormant  from 
lapse  of  time,  a  motion  may  be  made  to  the  court  for 
leave  to  issue  execution.  Usually,  no  pleadings  are 
required.  A  notice  of  the  motion,  describing  the  judg- 
ment with  sufficient  certainty  to  inform  the  defendant 
and  other  persons  interested  of  what  execution  is  de- 
manded, is  all  that  is  required  to  authorize  the  court 
to  act.*^^  In  some  states,  the  notice  must  be  accom- 
panied by  an  affidavit/"***  while  in  others  not  even  a 
notice  of  the  motion  need  be  given. *^*  The  defendant 
cannot  resist  the  application  by  urging  any  matter  ex- 
isting anterior  to  the  judgment.  The  execution  must 
issue  unless  the  judgment  has  been  satisfied,  or  has 
ceased  to  be  in  force  through  lapse  of  time,  or  the  de- 

"1  Paisy  Roller  :Mills  v.  Ward,  G  N.  D.  S17. 

182  Simpson  v.  Wilson,  16  Ind.  428;     Verden  v.  Coleman.  23  Ind. 
49;  Plough  V.  Reeves,  33  Ind.  181;  Plough  v.  Williams,  33  Ind.  182. 
"3  Turner  v.  Keller.  38  Mo.  332. 
16*  Bryan  v.  Stidger,  17  Cal.  270. 


§  97  EXECUTION  ON  DORMANT  JUDGMENTS.  350 

fendant  has  by  some  means  been  released  from  his  lia- 
bility.*^ It  is  no  answer  that  the  defendant  has  judg- 
ments or  other  counterclaims  against  the  plaintiff.*^* 
The  plaintiff  must  show,  to  the  satisfaction  of  the  court, 
that  the  judgment  has  not  been  paid,  and  that  he  is 
still  entitled  to  have  it  enforced.*^''  In  New  York, 
where  the  facts  on  which  the  right  to  execution  is 
based  are  disputed,  the  refusal  of  the  court  to  order 
the  writ  to  issue  will  not  be  reviewed  on  appeal;  but 
the  plaintiff  will  be  turned  over  to  his  remedy  by  ac- 
tion on  the  judgment.*^*  The  application  must  be 
made  during  the  lives  of  the  parties,*^**  after  the  judg- 
ment has  become  dormant,*®**  and  before  it  has  become 
barred  by  the  statute  of  limitations.*®*  In  New  York, 
if  an  original  execution  is  issued  within  five  years,  an 
alias  writ  may  issue  at  any  time  thereafter  without 
leave  of  the  court.  This  was  clear  under  provisions  of 
section  284  of  the  Code  of  Procedure,  as  amended  in 
1858.  Before  this  amendment,  this  section  provided 
that  "after  the  lapse  of  five  years  from  the  entry  of 
judgment,  an  execution  can  be  issued  only  by  leave  of 
the  court."  The  courts  were  very  evenly  divided  upon 
the  effect  of  this  language.  On  the  one  side,  it  was 
contended  that  the  common-law  rule  was  still  in  force, 
allowing  an  alias  to  issue  at  any  time,  if  an  original 
writ  issued  within  the  time  specified  by  law;*®^  on  the 

155  Lee  V.  Watkins,  13  How.  Pr.  178;  3  Abb.  Pr.  243. 
186  Betts  V.  Garr,  26  N.  Y.  383. 
167  Reeves  v.  Plough,  46  Ind.  350. 

188  Shuman  v.  Straus,  52  N.  Y.  404. 

189  Ireland  v.  Litchfield,  22  How.  Pr.  178;  8  Bosw.  634. 

ICO  Wilgus  V.  Bloodgood,  33  How.  Pr.  289;  Field  v.  Paulding,  3 
Abb.  Pr.  1.39;  1  Hilt  187. 

i«i  Kennedy  v.  Mills,  4  Abb.  Pr.  132. 

iia  Pierce  v.  Craine.  4  How.  Pr.  257;  McSmith  v.  Van  Deusen,  9 
How.  Pr.  2^5;  Kress  v.  Ellis,  14  How.  Pr.  392;  Redmond  v.  Wheeler, 
2  Abb.  Pr.  117. 


^51  EXECUTION  ON  DORMANT  JUDGMENTS.  §  07 

Other  side,  it  was  insisted  that  the  terms  of  the  statute 
embraced  alias  as  well  as  original  writs,  and  therefore 
that  no  execution  could  regularly  issue,  after  five 
years,  Avithout  leave  of  the  court.*"^  This  last  view 
met  the  concurrence  of  the  supreme  court  of  Missouri 
when  construing  a  similar  statute,  in  a  case  in  which, 
in  referring  to  the  common-law  rule,  the  court  said:, 
^'Certainly  we  ought  not  to  adopt  this  worn-out  rule 
in  the  construction  of  a  new  statute,  which,  after  ex- 
tending the  year  to  five  years,  prohibits  the  issuing  of 
execution  after  that  period,  unless  by  leave  upon  mo- 
tion after  notice  to  the  adverse  party.  We  cannot, 
and  ought  not,  in  this  manner,  partially  repeal  the 
statute,  by  declaring  that  the  prohibition  does  not  ap- 
ply to  a  case  like  the  present,  where  an  execution  has 
been  sued  out  within  five  years,  although  more  than 
five  years  have  since  elapsed  without  any  proceeding 
upon  the  judgment."  **^ 

163  Currie  v.  Noyes,  1  Code  R..  N.  S.,  198:  Swift  v.  Flanagan,  12 
How.  rr.  438;  Racia  v.  Nestle,  13  How.  Pr.  572. 
18*  Bolton  V.  Lansdown,  21  Mo.  402. 


§  98  DUXliiJi  AiML»  LiAiililTIbki  01)'  OJj'FKJMlS,  36i 


CHAPTER  IX. 

TXQITIEIES  CONCEENING  THE  DUTIES  AND  LIABIL- 
ITIES OF  OFFICEUS  ON  RECEIVING  WRITS  OF 
EXECFTION. 

§    98.     First  duty  of  officer  on  receipt  of  the  writ. 

§    99.     Inquiries  by  officer  into   validity  of  the  writ. 

§    90  a.  Inquiries  concerning  competency  of  officer  to  execute  the 

writ. 
1 100.     How  far  officer  must  inquire  into  the  jurisdiction  of  the 

court. 
§  101.     The  officer  need  not  look  behind  the  writ. 
§  102.     Whether  the  officer's  knowledge  of  void  nature  of  writ  Is 

material. 
§  103.     Officer  must  execute  voidable  process;   otherwise,  if  it  be 

void. 
§  104.    Officer  must  see  that,  the  writ  is  enforceable  in  his  county. 
§  105.     Suspension  or  satisfaction  of  writ  in  officer's  hands. 
§  lOG.     When  the  authority  of  the  officer  terminates. 
§  107.    When  the  writ  must  be  executed. 
§  108.     Who  may  control  the  writ. 

§  98.  The  First  Duty  of  Officer  on  Receipt  of  Writ.— 
So  far,  our  inquiries  have  been  in  regard  to  the  form 
and  issue  of  execution  against  the  property  of  defend- 
ants. We  shall  now  assume  that  the  plaintiff  has  pro- 
cured an  execution  to  be  issued.  For  the  purpose  of 
our  future  investigations,  it  will,  in  general,  be  imma- 
terial to  ascertain  whether  the  writ  is  an  original  or  an 
alias;  Avhether  it  was  sued  out  on  the  original  judg- 
ment before  the  same  became  dormant,  or  after  such 
judgment  had  been  dormant  and  was  duly  revived  by 
scire  facias,  or  by  some  similar  proceeding  sanctioned 
by  statute.  The  two  officers  who  have  most  to  do  with 
writs  of  execution  are  the  clerks  by  whom  such  writs 


353  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  1;8 

are  issued,  and  the  sbcrifTs  or  constabk*  by  whom  they 
are  enforced.  The  precedin*,^  chapters  of  this  wm-k 
have  been  mainly  employed  in  the  consideration  of 
matters  falling  within  the  duties  of  the  clerks;  the  re- 
maining chapters  will  be  very  largely  occupied  by 
questions  connected  with  the  duties  of  sheriffs  and 
constables. 

After  the  plaintiff  procures  his  execution,  his  next 
step  should  be  to  i)lace  it  in  the  hands  of  the  proper  offi- 
cer for  service.  This  oflicer  is  usually  required,  on  re- 
ceiving the  writ,  to  indorse  thereon  the  precise  time 
at  which  it  came  into  his  hands.  This  requirement  is 
useful  because  it  furnishes  data  by  which  to  determihe 
the  priority  of  conflicting  writs,  and  preserves  evidence 
by  which  to  ascertain  the  exact  period  when  the  offi- 
cer's rights  and  responsibilities  began.*  The  negli- 
gence of  the  sheriff  in  this  respect  has  no  effect  what- 
ever upon  the  validity  of  the  writ,  nor  of  any  subse- 
quent proceeding  taken  in  the  enforcement  thereof, 
for  the  date  of  delivery  may  be  ascertained  by  any 
competent  evidence,^  nor  does  such  negligence  impose 
any  liability  upon  the  officer  in  favor  of  the  plaintiff  in 
the  writ  unless  he  can  show  some  actual  damage  re- 
sulting therefrom.*  If,  on  the  other  hand,  the  offi- 
cer does  indorse  upon  the  writ  a  date  as  that  of  its  re- 
ception, a  question  may  arise  as  to  whetlier  the  date 
so  indorsed  is  correct.     In  Pennsylvania  this  question 

^  Willi.ims  V.  Lowndes,  1  Ilall,  579;  Knox  v.  Webster,  18  Wis. 
406.  Sn  Am.  Per.  770. 

2  Hale's  Appeal.  44  Pa.  St.  430;  .Tohnson  v.  McLane,  7  Blackf.  501. 
43  Am.  Dec.  102:  Hester  v.  Keith,  1  Ala.  316:  Fletcher  v.  Pratt,  4 
Vt.  182;  nirich  v.  Dreyer.  2  Watts.  303:  De  Witt  v.  Dunn.  15  Tex. 
106;  Hanson  v.  Barnes'  Lessee.  3  Gill  &  J.  359.  22  Am.  Dec.  322; 
Jaclvson  V.  Spink.  ."9  TU.  407:  Wilson  v.  Swasey  (.Tex.),  20  S.  W\  48. 

8  Abbott  V.  Edgerton,  30  Vt.  20S. 
Vol.  I.— 23 


§  99,  9aa  DUTIES  AND  LIABILITIES  OF  OFFICERS.  354 

seoms  not  to  be  an  open  one,  for  in  that  state  the  in- 
dorsement is  conclusive.'*  We  are  not  able  to  con- 
ceive any  adequate  reason  for  this  conclusion,  and 
none  is  attempted  to  be  given  by  the  court.  The  ob- 
ject of  the  requirement  is  to  preserve  some  memoran- 
dum from  which  the  date  of  the  reception  of  different 
writs  may  be  indicated  and  their  respective  priorities 
determined.  But  the  ultimate  result  sought  was  to 
give  priority  to  the  writ  first  in  the  officer's  hands;  and 
this  result  must  be  defeated  if  a  mere  mistake  of  the 
officer  in  entering  the  date  is  to  prevail  over  the  actual 
facts  of  the  case. 

§  99.  Inquiries  to  be  Made  by  Officer  Before  Executing 
\/\/pjt. — Before  making  any  attempt  to  execute  the  writ, 
a  prudent  officer  will  stop  to  make  such  inquiries  as  are 
necessary  to  satisfy  him  whether  it  is  one  which  he  is 
authorized  by  law  to  enforce;  whether  it  will  protect 
him  while  acting  in  obedience  to  its  commands,  or  will 
leave  him,  as  a  trespasser,  without  any  legal  justifica- 
tion. He  may,  if  he  sees  proper  so  to  do,  after  ascer- 
taining that  the  writ  is  one  under  which  he  can  jus- 
tify, proceed  further,  and  inquire  whether  it  is  one 
which  he  is  bound  to  execute.  We  shall  devote  this 
chapter  to  inquiries  likely  to  be  made  after  the  issue 
of  the  writ,  and  before  any  active  steps  are  taken  for 
its  enforcement. 

§  99  a.  Inquiries  Respecting  the  Competency  of  th3 
Officer  to  Serve  the  Writ.— Before  undertaking  to  pro- 
ceed under  a  writ,  an  officer  ought  always  to  ascertain 
whether  he  is  competent  to  execute  it.  This  inquiry 
may  generally  be  answered  from  an  inspection  of  the 
writ.    It  may  be  directed  to  a   different   officer   from 

*  Person's  Appeal,  78  Pa.  St.  145. 


355  DUTIES  AND  LIABILITIES  OF  OFFICEIIS.  §  99a 

the  one  to  whom  it  is  delivered,  in  which  case  we  ap- 
prehend that  it  cannot  justify  proceedings  taken  by 
the  latter.^  Substantially,  an  officer  receiving,  or  hav- 
ing charge  of,  a  writ  which  is  not  directed  to  liini,  nor 
to  the  class  of  officers  of  which  he  is  a  member,  does 
not,  in  acting  under  it,  act  in  his  official  capacity. 
ELence,  sales  made  by  him  thereunder  are  void,  returns 
made  by  him  thereon  are  not  competent  evidence  of 
the  facts  stated  therein,  and  bonds  of  indemnity  taken 
by  him  are  not  enforceable.**  If,  however,  a  statute 
expressly  •  auyiorizes  sheriffs  to  serve  any  process 
which  a  constable  may  execute,  officials  of  the  former 
class  may  act  under  process  purporting  to  be  directed 
to  officials  of  the  latter.'' 

If  the  sheriff  is  by  any  reason  disqualified  to  serve  an 
execution,  it  ought  to  be  directed  to  the  coroner.  But 
an  error  in  omitting  to  so  direct  it  will  not  require  the 
sheriff  to  receive  and  execute  it.  Even  though  the 
sheriff  has  no  interest  in  the  writ  or  judgment,  as  where 
he  is  a  party  in  a  representative  capacity,  as  adminis- 
trator of  a  deceased  person,  he  may  decline  to  serve 
the  writ,  and  cannot  be  proceeded  against  by  motion 
for  a  failure  to  return  such  writ.^  With  respect  to  a 
writ  which  an  officer  is  disqualified  to  serve,  he  must 
be  regarded  as  holding  no  official  capacity.  He  has  no 
competency  to  act;  and,  though  he  attempt  to  act,  what 
he  does  iSjin  contemplation  of  law, no  action  whatever.'* 

R  Plant  V.  Anderson,  16  Fed.  Rep.  014;  Blanee  v.  Mize,  72  Ga.  9'^ 
«  Porter  v,  Stapp,  G  Colo.  32;  Johnson  v.  Elkins.  90  Ky.  163:  Gowdy 
V.  Sanders,  88  Ky.  346;  Terry  v.  CHtler,  4  Tex.  Civ.  App.  570. 

7  Foster  v.  Wiley,  27  Mich.  244.  15  Am.  Dec.  185. 

8  .Tohnson  v.  McLaughlin,  9  Ala.  551. 

9  Knott  V.  Jarboe,  1  Met.  (Ky.)  504;  Mills  v.  Youns:.  23  Wend.  314; 
Riner  v.  Stacy,  8  Humph.  288;  May  v.  Walters.  2  MeCord,  470;  Sin- 
frlelary  v.  Carter.  1  P.ail.  -1(>7.  21  Am.  Dec.  480;  Knight  v.  Morrison, 
79  Ga.  53,  11  Am.  St.  Kep.  405. 


§  99a  DUTIES  AND  LIABILITIES  OF  OFFICERS.  35S 

He  is,  therefore,  not  entitled  to  the  protection  of  the 
writ,  and  for  acts  which  he  does  in  apparent  obedience 
to  its  commands  he  may  be  held  answerable  as  a  tres- 
passer.^^ 

If  an  officer  has  no  authority  to  act,  he  can  delegate 
none  to  another,  and  hence  his  deputy  cannot  act  for 
him  nor  in  his  name  in  any  case  in  which  he  is  dis- 
qualified.-^* In  truth,  a  deputy  may  be  subject  to  two 
grounds  of  disqualification  because  of  interest,  viz: 
first,  Avhen  his  principal  is  interested  in  the  writ,  and 
second,  when  he  himself  is  so  interested,  for,  though 
the  principal  is  not  disqualified  by  interest,  the  deputy 
may  be,  and,  where  such  is  the  case,  he  has  no  author- 
ity to  act,  though  his  principal  might  have  acted  either 
in  person  or  by  some  other  deputy  not  interested  in 
the  writ.*^  Sometimes  provisions  are  made  by  stat- 
ute for  the  appointment,  or  special  authorization,  of  a 
person  to  serve  a  writ,  as  where  a  justice  is  granted  au- 
thority to  depute  to  any  discreet  person  of  suitable 
age,  not  interested  in  the  action,  authority  to  serve  a 
summons  or  execution.  If  one  undertakes  to  exercise 
such  authority  under  a  supposed  deputation  which  is 
invalid,  all  his  proceedings  thereunder  are  void.*^ 

The  disqualification  of  an  officer  need  not  appear 
from  the  face  of  the  writ.  It  does  not  depend  upon 
his  being  nominally  a  party  to  the  writ.  He  is,  in  most 
of  the    states,  forbidden  from  executing  any  writ  in 

lo.Tackson  v.  Bowker,  53  N.  Y.  Supp.  585;  Erwin  v.  Bowman,  51 
Tex.  513. 

11  Stewart  v.  Mapness,  2  Cold.  310,  88  Am.  Deo.  598:  Fairfield  v. 
Hall,  8  Vt.  68;  Chambers  v.  Thomas,  3  A.  K.  Marsh.  53G. 

12  Samuel  v.  CommonAvealth,6  T.B.  Mon.173;  Chambers  v. Thomas, 
1  Litt.  208;  Sin^lotary  v.  Carter,  1  Bail.  407,  21  Am.  Dec.  480;  Riner 
V.  Stacy,  8  Humph.  288. 

13  McMillan  v.  Rowe,  15  Neb.  520. 


357  DUT1E.S  AND  LIABILITIES  OF  OFFICERS.  §  UOa 

which  ht'  is  interested.  Hence,  if  ho  has  become  the  as- 
si<ine»^  (jf  the  judgiuent,  or  if  the  judgment  is  bein^ 
enfoi'Cf'd  for  his  indemnity  or  benefit,  he  is  disqualified 
to  act,  and  his  attempted  action  is  a  nullity.''*  There 
may,  perhaps,  be  instances  in  which  an  (dliccr  may  be 
affected  by  the  result  of  a  suit  without  losing  his  com- 
petency to  serve  process  therein.  Thus,  in  New  Ilamp- 
shire,  it  has  been  decided  that  a  sheriff  was  not  incom- 
petent to  serve  process  because  the  maintenance  of  the 
action  might  make  him  answerable  to  defendant  for 
the  amount  of  the  recovery,  though  it  was  conceded 
that  he  would  be  incompetent  if  he  were  the  real  plain- 
tiff or  the  real  defendant  for  whose  benefit  the  action 
was  ])r()secuted  or  defended.^"'  If  an  officer  is  an  in- 
habitant of  a  municipal  corporation,  and  under  the 
existing  law  his  propert\^  may  be  seized  under  a  writ 
against  such  corporation,  he  is  incompetent  to  serve  a 
writ  for  or  against  it.*** 

In  some  of  the  states  a  sheriff  and  his  deputies  are 
regarded  as  one  officer,  and  where  any  of  them  is  dis- 
qualified all  seem  to  be.  Hence,  it  has  been  held  that 
neither  a  sheriff'  nor  any  of  his  deputies  could  exe- 
cute a  writ  to  which  another  deputy  was  a  nominal  or 
real  party.*''  This  is  a  mistaken  view.  There  is  but 
one  office,  it  is  true,  but  "the  only  incumbent  of  that 
oflice  is  the  principal.  If  the  principal  is  disqualified, 
the  deputies  must  be,  because  what  they  do  is  in  law 
not  their  act,  but  his.  If  a  deputy,  on  the  other  hand, 
is   disqualifiid,   this  renders   him    incompetent  to  act, 

KCarpontor  v.  Stilwell.  11  N.  Y.  61:  Barker  v.  Remick,  43  N.  H. 
23S:  Samuel  v.  Commonwealth.  6  T.  B.  Men.  173. 

15  Barker  v.  RiMuiek.  43  N.  H.  23.'. 

16  State  V.  Walpole.  lo  N.  H.  2<):  Rnrker  v.  Remiok.  43  X.  IT.  238; 
Fairfield  v.  Hall.  S  Vt.  fiS:  Town  of  Essex  v.  Treutiss,  G  Vt.  47. 

17  Dane  v.  Gilmore,  51  Me.  544. 


§100  DUTIES  AND  LIABILITIES  OF  OFFICERS.  358 

and  his  principal  cannot  depute  to  him  authority 
to  levy  the  writ.  But  his  incompetency  does  not  affect 
the  principal,  for  the  latter  derives  no  authority  from 
his  subordinate.  Therefore,  a  sheriff  may  execute  pro- 
cess for  or  against  any  of  his  deputies.^* 

§  100.  Inquiries  Regarding  the  Jurisdiction  of  the 
Court. — While  sheriffs,  and  other  officers  acting  in  a 
similar  capacity,  are  protected  to  a  very  great  extent, 
they,  like  other  persons,  are  bound  to  know  the  law. 
They  must  know"  the  general  jurisdiction  of  the  courts 
whose  process  they  are  called  to  enforce;  for  if  a  writ  is 
placed  in  their  hands  which  the  court  had  no  author- 
ity under  any  circumstances  to  issue,  **  or  if  the  court 
had  authority  to  issue  similar  writs,  but  it  appears, 
from  this  particular  writ,  that  the  subject-matter  of 
the  action  was  one  over  which  the  court  had  no  juris- 
diction, then  the  writ  is  absolutely  void,  and  cannot 
justify  any  one  in  obeying  its  commands.'^  The  office  r 
must  examine  the  writ,  and,  when  it  appears  there- 
from that  the  judgment  was  void,  either  for  want  of 
jurisdiction  over  the  subject-matter  of  the  suit  or  over 
the  parties  thereto,  he  must,  if  he  would  protect  him- 
self from  liability,  refuse  to  proceed  under  the  writ.^^ 

18  Ford  V,  Dyer,  26  Miss.  243. 

19  Shergold  v.  Hollo  way,  2  Strange  1002;  Brown  v.  Compton,  8 
Term  Kep.  424;  Allen  v.  Greenlee,  2  Dev.  370;  Howard  v.  Clark,  43 
Mo.  .344;  Batchelder  v.  Currier,  45  N.  H.  460. 

20  Hull  V.  Rlaisdell,  1  Scam.  .3,32;  Gurney  v.  Tafts,  37  Me.  130,  .5S 
Am.  Dec.  777:  W^lse  v.  Withers,  3  Cr.Tncli,  331;  Penrce  v.  Atwood, 
13  Mas.s.  324;  Brown  v.  Compton,  8  Term  Rep.  424;  Stephens  v.  Wil- 
kins,  6  Pa.  St.  200;  Fisher  v.  McGirr,  1  Gray,  45,  01  Am.  Dec.  ,361; 
Howard  v,  Clark,  43  Mo.  344;  Eutick  v.  Carrington,  2  Wils.  275; 
Groome  v.  Forrester,  5  Maule  &  S.  314. 

21  Baldwin  v.  Hamilton,  3  W'is.  747;  Carratt  v.  INIorely,  1  Q.  B.  IS; 
Campbell  v.  Webb,  11  Md.  482;  Grumon  v.  Bayniond.  1  Conn.  48,^ 
6  Am.  Dec.  200;  Howard  v.  Gossett,  10  Q.  B,  359;  Tobin  v.  Addison^ 


359  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  luo 

There  are  certain  circumstances  with  respect  to  the 
form  and  issuing  of  the  writ  to  which  a  sheriff  must 
also  give  attention.  Thus,  where  the  writ  disclosed  on 
its  face  the  reasons  for  its  premature  issuing,  and  they 
were  insutlicieut  in  law,  the  ollicer  was  held  not  to  be 
justified,  in  enforcing  it.^^  While  we  do  not  concur  in 
the  result  reached  in  this  instance,   we   concede   that 

2  Strob.  3;  Mississippi  Mills  v.  Meyer,  83  Tex.  433.     In  the  case  of 
Dynos  v.  Iloovor,  20  How.  SO,  the    action  was  brou^jlit    against  a 
ministerial  officer  for  executing  the  sentence  of  a  court-martial.     It 
appeared,  liowevor.  that  tlie  court  had  jurisdiction,  and  the  otticer 
was  therefore  held  not  liable.    The  court  undertook,   however,  to 
slate  the  general  rules  governing  ministerial  officers,  and  In  doing 
so,  said:  "That  where  a  court  has  no  jurisdiction  over  the  subject- 
matter  it  tries,  and  assumes  it,  or  where  an  inferior  court  has  juris- 
diction over  the  subject-matter,  but  is  bound  to  adopt  certain  rules 
in  its  proceedings,  from  which  it  deviates,  whereby  the  proceedings 
are  rendered  coram  non  judice,  that  trespass  for  false  imprisonment 
is  the  proiier  remedy,  where  the  liberty  of  the  citizen  has  been  re- 
strained by  process  of  the  court,  or  by  the  execution  of  its  judgment. 
Sucli  is  the  law  In  either  case,  in  respect   to  the  court  which    act,<» 
without  having  jurisdiction  over  the  sul)ject-matter;  or  which,  hav- 
ing jurisdiction,  disregards  the  rules  of  proceeding  enjoined  by  the 
law  for  its  exercise,  so  as  to  render    the  case    coram    non  judice. 
Cole's  Case,  .fohn  W.  171;     Davison  v.  Gill,  1    East.  (>i;     Smith    v. 
Bencher,,  Ilardw.  71;  Martin  v.  Marshall,  Hob.  63:  Weaver  v.  Clif- 
ford, 2  Bulst.  04;  Yelv.  42.     In  both  cases,  the  law  is,  that  an  officer 
executing  the  process  of  a  court  which  has  acted  without  jurisdic- 
tion over  the  subject-matter  becomes  a  trespasser,  it  being  better 
for  the  peace  of  society,  and  its  interests  of  every  kind,  that  the 
responsibility  of  determining  whether  the  court  has  or  has  not  juris- 
diction should  be  upon  the  officer,  than  that  a  void  writ  should  be 
executed.    This  court,  so  far    back  as  the  year  1806,  said,  in  the 
case  of  Wise  v.  Withers,  3  Cranch,  331,  p.  337,  of  that  case:  'It  fol- 
lows, from  this  opinion,  that  a  court-martial  has  no  jurisdiction  over 
a  ju,stice  of  the  peace  as  a  militiaman;    he  could  never  be  legally 
enrolled;  and  it  is  a  principle  that  a  decision  of  such  a  tril)unal,  in 
a  case  clearly  without  its  jurisdiction,  cannot    protect    the  officer 
who  executes  it.     The  court  and  the  officers  are  all  trespassers.'    2 
Brown,  124;  10  Cranch,  69;  Mark's  Rep.  118;    8  Term  Rep.  424;    4 
Mass.  2.34."    An  officer  cannot    justify  under  a  writ  which  is  not 
valid  in  form.    Taylor  v.  Morrison;  7  Chic.  L.  N.  376. 
22  Clark  V.  Bond,  7  Baxt.  288. 


§  100  DUTIES  AND  LIABILITIES  OF  OFFICERS.  360 

there  may  be  cases  in  wliicli  executions  constitute  no 
justification  to  tlie  otticers  acting  under  them,  because 
of  a  want  of  jiower  to  issue  them,  or  because  their 
form  and  substance  are  not  such  as  to  confer  any  au- 
thority upon  the  persons  to  whom  they  are  delivered 
for  service.  The  cases  here  referred  to  can  only  be 
those  in  Avhich  the  writs  are  void  upon  their  face.  We 
have  endeavored  in  the  preceding  chapters  to  show 
when  writs  are  so  void.  The  decisions  upon  the  subject 
are  not  harmonious,  and  the  officer  must,  for  his  pro- 
tection, inform  himself  respecting  the  law  of  his  own 
state.  A  writ  issued  out  of  a  court  which  never  had 
authority  to  issue  it,  or  whose  authority  had  termi- 
nated, or  upon  a  judgment  which  it  had  in  no  circum- 
stances any  power  to  enter,  or  issued  by  some  officer 
who  had  no  authority  to  issue  it,-^  is  unquestionably 
void.  Beyond  this,  little  or  nothing  can  be  affirmed 
without  meeting  with  dissent  in  one  or  more  of  the 
states.''* 

A  writ  issued  under  a  supposed  statute,  which  is  in 
law  no  statute  whatever  because  unconstitutional, 
has  been  held  to  be  absolutely  void,""  and  he'ace  to 
constitute  no  protection  to  an  officer  obeying  its  man- 
date.-'"^  ^  Theoretically,  every  one  is  presumed  to  know 
the  law;  and,  ordinarily,  sound  public  policy  requires 
that  no  officer  be  permitted  to  excuse  his  wrongful  act 
or  omission  by  alleging  his  ignorance  of  law.  When, 
however,  what  appears  to  be  a  law  is  printed  among, 
and  as  one  of  the  statutes,  it  is  too  much  to  expect  of 

23  Chalker  v.  Ives,  55  Pa.  St.  81;  Hilblsh  v.  Hower,  58  Pa.  St.  03. 

24  See  chapters  II  and  III  for  essential    matters  respectiu)?    the 
issuing  and  form  of  writs  of  execution. 

25  Fisher  v.  McGirr.  1  Gray,  45,  61  Am.  Dec.  381;  Ely  v.  Thomp- 
Bon,  3  A.  K.  Marsh.  70. 

25a  Kelly  V.  Bemis.  4  Gray.  83.  PA  Am.  Doc.  50;  Campbell  v.  Sher- 
man. 35  Wis.  103;  Sumner  v.  Beeler,  50  Ind.  341. 


:361  DUTIES  AND  LI  A  HI  LIT  J  E.S  OF  OFFICEUS.  §  100 

an  officer  tliat  he  shall  correctly  tleteriiiiiie  its  coii- 
fititutionulitj  before  acting  uu(U*r  it,  or  that  he  shall 
respond  in  (laiiiages  for  any  error  made  by  liiiii  in  at- 
tempting such  determination.  In  our  judgment  pub- 
lic policy  re(iuires  that  ministerial  ollicers  yield  obedi- 
ence to  acts  of  the  legislature  and  be  given  no  oppor- 
tunity to  excuse  disobedience  by  suggesting  doubts  of 
constitutionality.'^  At  all  events,  for  the  purpose  of 
protecting  public  otlicers,  we  believe  that  a  majority 
of  the  courts  will  henceforth  justify  such  otticers  in 
treating  an  apparent  statute  as  a  valid  law  until  its  in- 
validity, or  want  of  constitutionality,  has  been  judici- 
ally declared. ^'^ 

An  officer  is  not  justified  in  his  action  where  the  tri- 
bunal whose  sentence  or  judgment  is  the  basis  of  the 
writ  is  not  authorized  by  law,^**  or,  being  authorized  by 
law,  has  no  jurisdiction  over  the  subject-matter  in  the 
particular  case,  as  where  a  state  court  issues  process  in 
rem  to  enforce  a  maritime  lien,^^  or  a  justice's  court  en- 
ters judgment  for  a  sum  in  excess  of  its  jurisdiction.^® 

The  general  expression  of  many  of  the  cases  is  that 
the  process  must  "be  fair  on  its  face"  to  warrant  the 
officer  in  implicitly  relying  upon  it  for  protection.  By 
this  expression  we  do  not  understand  them  to  intend 
that  there  must  be  no  irregularity  in  its  features,  and 
no  roughness  or  discoloration  in  its  complexion;  for  im- 
perfections so  slight  in  character  as  these  the  court  may. 

2«  Poople  V.  Salomon,  54  IlL  46. 

27Millor  V.  Dunn,  72  CaL  4(;2.  1  Am.  St.  Hop.  07;  ITonko  v.  Mo- 
Cord,  15  la.  378;  Sessums  v.  Kotts,  34  Tex.  335;  State  v.  MoNally,  34 
Me.  210,  5G  Am.  Dec.  G50. 

2s  Milligan  v.  Ilovey,  3  Biss.  13. 

2»  Campbell  v.  Sherman,  35  Wis.  103. 

so  Rosen  V.  Fischel,  44  Conn.  371;  Gates  v.  Neimeyer,  54  Iowa, 
110;  Patzak  v.  Von  Cericliten,  10  Mo.  A  pp.  424. 


§  101  DUTIES  AND  LIABILITIES  OF  OFFICERS.  3GJ 

compel  the  parties  to  overlook,  and,  where  the  parties 
may  be  required  to  abide  by  the  process,  it  always  justi- 
fies an  otTficer  in  whatever  he  may  do  by  its  command. 
With  respect  to  process  proceeding  from  a  court  of 
limited  jurisdiction,  the  inquiries  which  the  officer 
called  upon  to  enforce  it  must  pursue  are  not  substan- 
tially variant  from  the  inquiries  required  in  other 
cases.  He  must,  at  his  peril,  know  what  is  the  jurisdic- 
tion of  the  court — what  judgments  it  may  lawfully  en- 
ter, and  what  writs  it  may  grant  for  their  enforcement. 
If  the  writ  issued  appears  upon  its  face  to  have  issued 
in  a  proper  case  and  by  a  competent  officer,  he  may 
safely  yield  obedience  thereto.^* 

§  101.  Officer  Need  not  Look  Behind  the  Writ.— The 
sheriff  may  limit  his  inquiries  to  an  inspection  of  the 
writ.  If  the  writ  is  issued  by  the  proper  officer,  in  due 
form,  and  appears  to  proceed  from  a  court  competent 
to  exercise  jurisdiction  over  the  subject-matter  of  the 
suit,  to  grant  the  relief  granted  and  enforce  it  by  the 
writ  issued,  and  there  is  nothing  on  the  face  of  the 
writ  showing  a  want  of  jurisdiction  over  the  person  of 
the  defendant,  or  showing  the  writ  to  be  clearly  illegal 
from  some  other  cause,  the  officer  may  safely  proceed. 
That  from  some  cause,  not  shown  in  the  writ,  the  judg- 
ment or  writ  was  irregular  or  void  will  be  of  no  conse- 
quence to  him,^^    He  can  justify  upon  producing  the 

31  Billings  V.  Rusi^ell.  23  Pa.  St.  189,  (12  Am.  Dec.  .S.SO;  Gott  v. 
Mitcliell,  7  Blackf.  270;  Savacool  v.  Bougliton,  5  AVend.  170,  21  Am. 
Dec.  181,  and  note. 

82  Spragne  v.  Bircliard,  1  Wis.  457,  GO  Am.  Dec.  .39.3;  Warner  v. 
Shed,  10  .Tohns.  1.38;  Kue  v.  Terry,  63  Barb.  40;  Gray  v.  Kimball,  42 
Me.  299;  Earl  v.  Camp,  16  Wend.  562;  Billings  v.  Russell,  23  Pa.  St. 
189,  62  Am.  Dec.  330;  Mason  v.  Vance,  1  Sneed,  178,  60  Am.  Dec. 
144:  Hill  V.  Bateman,  2  Strange,  710;  State  v.  Crow,  6  Eng.  642;. 
McDonald  v.  Willde,  13  111.  22,  54  Am.  Dec.  423;  Andrews  v.  Morris,. 


363  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §   101 

writ.  It  is  1  here  fore  immaterial  to  liim  that  the  judg- 
ment does  not  correspond  to  the   writ,  or   that   there 

1  Ad.  &  E.,  N.  S.,  4;  McLeau  v.  Cook,  2;j  Wis.  'Mk;  Clarke  v.  May,  2 
<iray,  410;  Donahoe  v.  Shed,  8  Met.  320;  Ilargett  v.  Blackshear, 
Tavl.  (N.  C.)  107;  Ilarnion  v.  Gould,  Wright  (Ohio),  709;  Churchill 
V.  Churchill,  12  Vt.  (JOl;  Iliffdon  v.  Conway,  12  Mo.  29."j;  Taylor  v. 
Alexander,  G  Ham.  145;  Cody  v.  Quiun,  6  Ired.  I'Jl;  Howard  v. 
Clark,  43  Mo.  .144;  Brown  v.  Henderson,  1  Mo.  134;  Smith  v.  Mile.s, 
1  Hemp.  34;  Whitney  v.  .Tenkinson,  3  Wi.'!.  407;  Twitcliell  v.  Shaw, 
10  Cush.  48,  57  Am.  Dec.  80;  Allen  v.  Corlew,  10  Kan.  70;  Crockett 
V.  Latimer,  1  Humph.  273;  Carter  v.  Purrington,  2  Allen,  N.  B.,  22G; 
Young  V.  Wise,  7  Wis.  128;  State  v.  Giles,  10  Wis.  101;  Bogert  v. 
Phelps,  14  Wis.  88;  Milburn  v.  Gilman,  11  Mo.  64;  Johnson  v.  Fox, 
51  Ga.  270;  Woods  v.  Davis,  34  N.  H.  328;  Keniston  v.  Little,  10 
Fost.  318,  G4  Am.  Dec.  297;  Blanchard  v.  Goss,  2  N.  II.  491;  Ortman 
V.  Greenman,  4  Mich.  291;  McElhaney  v.  Flynn,  23  Ala.  819;  Averelt 
V.  Thompson,  15  Ala.  G7S;  Cogburn  v.  Spence,  15  Ala.  549,  50  Am. 
Dec.  140;  Dixon  v.  Watkins,  4  Eng.  l;'>9;  Bickerstaff  v.  Doub,  19 
Cal,  109,  79  Am.  Dec.  204;  Watson  v.  Watson,  9  Conn.  141,  23  Am. 
Dec.  324;  Carter  v.  Clark,  28  Conn.  512;  Neth  v.  Crofut,  30  Conn. 
580;  Miller  v.  Hahn,  116  Mich.  607;  O'Briant  v.  Wilkerson,  122 
N.  C.  304;  Burnham  v.  Stone,  101  Cal.  164;  Thompson  v.  Jack- 
son, 93  la.  376;  State  v.  Devitt,  107  INIo.  573.  28  Am.  St.  Bep.  440; 
IJaiidall  V.  Bosenthal  (Tex.  Civ.  App.).  31  S.  W.  822;  Rousanville  v. 
McGinness,  93  Ga.  579;  Nelson  S.  Co.  v.  McKinnon,  (jl  Minn.  219; 
Barr  v.  Combs,  29  Or.  399;  Mechem  on  Public  OtKces  and  Officers, 
sec.  768:  Heath  v.  Half  hill.  106  Iowa.  131;  Faull  v.  Cooke,  19 
Or.  4.55,  20  Am.  St.  Rep.  836;  Barnes  v.  Barber,  1  Gilm.  401;  Parker 
v.  Smith,  1  Gilm,  411;  Hunt  v.  Ballew,  9  B.  Mon.  390;  Iloskins  v. 
Helm.  4  Litt.  310,  14  Am.  Dec.  133;  Clay  v.  Caperton,  1  T.  B.  Mon. 
10.  15  Am.  Dec.  77;  Percefull  v.  Commonwealth.  3  B.  Mon.  347; 
Chase  v.  Fish.  16  Me.  132;  Carle  v.  Delesdernier,  13  Me.  263.  20  Am. 
Dec.  508:  State  v.  McNally,  34  Me.  210,  56  Am.  Dec.  650;  AViltou  M. 
Co.  V.  Butler,  34  Me.  431;  Robinson  v.  Barrows,  48  Me.  186;  Deal  v. 
Harris.  8  Md.  40,  63  Am.  Dec.  686;  Wilmarth  v.  Burt,  7  Met.  257; 
Chase  v.  Ingalls,  97  Mass.  524:  Bergin  v.  Hayward,  102  Mass.  414; 
Clark  V.  Norton,  6  Minn.  412;  Woodruff  v.  Barrett.  3  Green,  40; 
Rainmel  v.  Watson,  31  N.  J.  L.  281;  Mangold  v.  Thorpe.  33  N.  J.  L. 
134;  French  v.  Willett,  4  Bosw.  649;  Cornell  v.  Barnes.  7  Ildl,  35; 
Noble  V.  Halliday.  1  N.  Y.  3.30;  Hutchinson  v.  Brand.  9  N.  Y.  208; 
Chegaray  v.  Jenkins,  5  N.  Y.  381;  Rosenfield  v.  Palmer.  9  Alb.  L.  J. 
191;  State  v.  Morgan.  3  Ired.  186.  38  Am.  Dec.  714:  State  v.  Fergu- 
son. 67  N.  C.  219;  McHugh  v.  Pundt,  1  Bail.  441;  Brown  v.  Wood,  1 
Bail.  457:  ^liller  v.  Grice.  1  Rich.  147;  Traylor  v.  McKeown.  12  Rich. 
251;  Paris  v.  State,  3  Ohio  St.  159;  Fox  v.  Wood,  1  Rawle,  143;  Paul 


§  JOl  DUTIES  AND  LIABILITIES  OF  OFFICERS.  364 

never  was  any  siitli  judgment  in  existence.^^  "A  min- 
isterial officer,  before  executing  process  placed  in  his 
hands,  is  not  obliged  to  inquire  into  the  regularity  of 
the  proceedings  of  the  tribunal  from  which  it  ema- 
nates, and  determine,  at  his  peril,  whether  it  was  law- 
fully issued  or  shall  be  obeyed.  His  duty  is  to  execute 
it,  if  in  due  form  of  law,  regular  on  its  face,  and  comes 
duly  authenticated  from  a  court  or  magistrate  hav- 
ing jurisdiction  of  the  subject  matter."  ^*  "If  an  of- 
ficer in  good  faith  executes  a  writ,  fair  on  its  face,  the 
writ  protects  him,  though  there  was  no  judgment  upon 

V.  Vankirk.  6  Binn.  123;  Swires  v.  Brotherline,  41  Pa.  St.  13.5.  80 
Am.  Dec.  601;  Atkinson  v.  Micheaux,  1  Humph.  312;  Stevenson  v. 
McLean,  5  Humph.  332,  42  Am.  Dec.  434;  Barnes  v.  Hayes,  1  Swan. 
304;  Fall  Creek  Coal  Co.  v.  Smith,  71  Fa.  St.  230;  Earle  v.  Thomas, 
14  Tex.  583;  Hill  v.  Wait,  5  Vt.  124;  Gage  v.  Barnes,  11  Vt.  195; 
Pierson  v.  Gale,  8  Vt.  500,  30  Am.  Dec.  487;  Brown  v.  Mason,  40  Vt. 
157;  Loomis  v.  Wheeler,  21  Wis.  271;  Miller  v.  Brown.  3  Mo.  127.  23 
Am.  Dec.  G93;  Elsemore  v.  Longfellow,  76  Me.  128;  Erskine  v.  Hohn- 
bach,  14  Wall.  613;  Coleman  v.  McAnulty,  16  Mo.  173,  57  Am.  Dec. 
229;  Orr  v.  Box.  22  Minn.  485;  Yeager  v.  Carpenter,  8  Leigh.  4.54, 
31  Am.  Dec.  6G5;  Barr  v.  Boyles,  96  Pa.  St.  31.  Hence  the  officer 
is  protected  though  the  writ  runs  against  a  deceased  person.  Bragg 
V.  Thompson,  10  S.  C.  572. 

33  Turner  v.  Felgate,  Lev.  95;  Britton  v.  Cole,  12  Mod.  178;  Jones 
V.  Williams,  8  Mees.  &  W.  349;  Camp  v.  Moseley,  2  Fla.  171;  Barker 
V.  Braham,  3  Wils.  376;  Cotes  v.  Michill,  3  Lev.  20;  Moravia  v. 
Sloper,  Willes.  30;  Gott  v.  Mitchell,  7  Blackf.  270;  Burton  v.  Sweaney, 
4  Mo.  1;  Andrews  v.  Morris,  1  Ad.  &  E.,  N.  S.,  4;  Etheridge  v. 
Edwards,  1  Swan.  42t);  Davis  v.  Cooper,  6  Mo.  148;  Kleissendorff  v. 
Fore,  3  B.  Mon.  473;  Traylor  v.  McKeown,  12  Rich.  251:  Jackson 
v.  Hobson,  5  111.  411;  Keys  v.  Granuis,  3  Nev.  .548;  Crowe  v.  Adams, 
21  Can.  S.  C.  K.  342.  Therefore,  if  an  execution  purports  to  be 
issued  on  a  judgment  of  the  county  court,  when  in  fact  it  is  upon 
a  transcript  of  a  judgment  of  an  inferior  court,  and  is  invalid  be- 
cause not  issued  in  the  manner  provided  for  executions  upon  such 
transcripts,  the  officer  cannot  be  held  responsible  as  a  trespasser, 
there  being  nothing  to  warn  him  that  he  was  not  Jicting  under  a 
jiidgment  of  the  county  court.  Hill  v.  Hayues,  9  Alb.  L.  J.  27();  54 
N.  Y.  153.  Contra,  that  officer  must  produce  judgment,  Hamilton 
V.  Decker,  2  South.  813. 

34  Henline  v.  Reese,  56  Ohio  St.  603,  56  Am.  St.  Rep.  738. 


355  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  101 

wliicli  to  baso  it.  Such  a  wi'it  ran  otiIv  bo  iisfMl  as 
a  weapon  of  defense,  and  for  protection — not  for  the 
purpose  of  attack  for  offensive  purposes.  An  officer, 
who,  in  oood  faith,  seizes  and  sells  property  under  an 
execution,  may  justify,  in  a  suit  for  damafjes  a?;ainst 
him  in  consequence  of  such  seizure  or  sale,  without 
producing  the  judgment;  and  he  will  be  regarded  as 
having  acted  in  good  faith,  when  the  writ  was  fair  on 
its  face  and  he  was  not  advised  that  there  was  no  judg- 
ment or  that,  if  there  was,  it  was  void.  And  it  will 
make  no  difference  whether  the  suit  is  for  damages  on 
an  implied  contract  or  upon  a  tort.  A  ministerial  officer 
cannot  be  held  personally  liable  in  any  proceeding, 
civil  or  criminal,  for  any  act  done  by  him  in  executing 
a  writ  fair  on  its  face,  unless  he  knows,  or  should  have 
kndwn,  as  a  reasonable  man,  that  the  judgment  upon 
which  it  purported  to  have  been  issued  was  void,  or 
that  there  was  no  judgment."  ^^ 

88  Ilamiier  v.  Ballantyne,  13  Utah.  342.  57  Am.  St.  Rep.  73G. 

A  somewhat  extreme  application  of  the  priuciple  was  made  by 
the  court  of  appeals  of  Indiana.  An  execution  issued  directing  a 
sheriff  to  sell  a  house  described  therein.  In  executinc:  the  writ  he 
entered  the  house  and  removed  therefrom  certain  household  fur- 
niture and  other  personal  property,  and  for  this  an  action  was 
brought  against  him  and  his  sureties  by  the  owners  of  such  property 
—who  were  not  parties  to  the  writ,  and  who  claimed  also  to  be 
owners  of  the  house  thus  directed  to  be  sold.  In  determining  that 
this  writ  justified  the  officer  in  what  he  did.  the  court  said:  "We 
think  it  manifest,  from  the  averments  in  the  complaint,  that  the 
alh'ged  wrongful  conduct  of  the  sheriff  is  predicated  upon  the  fact 
that  the  rel.-itors,  altlunigh  the  owners  and  in  jjossession  of  the 
house  which  the  sheriff  was  ordered  to  sell,  were  not  made  parties 
to  the  foreclosure  suit  in  which  the  writ  was  issued.  It  is  not 
shown  when  the  relators  became  the  owners  of  the  house,  whether 
before  or  after  the  execution  of  the  mortgage;  nor  do  we  see  that 
this  is  important,  so  far  as  this  action  is  concerned.  When  an  exe- 
cution, or  order  of  sale.  Issues  from  a  court  of  competent  jurlsdlc- 
tlon.  and  is  placed  in  the  hands  of  the  sheriff,  it  is  liis  duty  to  exe-v 
cute    the    same  according  to    its  terms    with  reasonable    diligence. 


§  101  DUTIES  AND  LIABILITIES  OF  OFFICERS.  3C6 

The  case  of  Savacool  v.  Boughton,  5  Wend.  170,  21 
Am.  Dec.  181,  is  a  leading  case  on  this  subject  when  the 
process  issues  out  of  a  court  of  limited  jurisdiction.     In 

His  duty  is  ministerial,  not  Judicial.  His  province  is  to  execute 
the  process  regularly  delivered  to  bim,  and  not  to  sit  in  judgment 
upon  the  regularity  of  the  proceedings  upou  which  it  was  obtnined. 
Out  of  this  duty  arises  the  necessity  of  protection  to  the  sheriff. 
If  the  process,  to  use  the  customary  legal  expression,  be  fair  on  its 
face,  it  will  protect  the  officer.  By  this  is  not  meaut  that  it  shall 
appear  to  be  perfectly  regular,  and  in  all  respects  in  accord  with 
proper  practice,  and  after  the  most  approved  form,  but  what  is  in- 
tended is  that  it  shall  apparently  be  process  lawfully  issued,  and 
such  as  the  officer  might  lawfully  serve.  More  precisely,  that  pro- 
cess may  be  said  .to  be  fair  on  its  face  which  proceeds  from  a  court, 
magistrate  or  body  having  authority  of  law  to  issue  process  of  tliat 
nature,  and  which  is  legal  in  form,  and  on  its  face  contains  nothing 
to  notify  or  fairly  apprise  the  officer  that  it  is  issued  without  au- 
thority. When  such  appears  to  be  the  process,  the  officer  is  pro- 
tected in  making  service,  and  he  is  not  concerned  with  any  illegali- 
ties that  may  exist  back  of  it.  Cooley  on  Torts,  538;  Noland  v.  Busby, 
28  Ind.  154;  State  ex  rel.  v.  Hamilton,  32  Ind.  104;  Adams  v.  Davis, 
109  Ind.  10;  Watson  v.  Watson,  9  Conn.  140,  23  Am.  Dec.  324;  Ken- 
iston  V.  Little,  30  N.  H.  318,  64  Am.  Dec.  297;  Caldwell  v.  Hawkins, 
40  Me.  526;  Underwood  v.  Robinson,  106  Mass.  296:  People  v.  War- 
ren, 5  Hill,  440;  Cornell  v.  Barnes,  7  Hill,  35;  Billings  v.  Russell,  23 
Pa.  St.  189,  62  Am.  Dec.  330;  Ix)omis  v.  Spencer,  1  Ohio  St.  153; 
Brother  v.  Cannon,  1  Scam.  200;  Glasgow  v.  Rowse,  43  Mo.  479.  It 
must  not  be  overlooked,  however,  that  the  rule  that  an  officer  is 
justified  bv  his  process,  when  it  is  fair  upou  its  face,  is  one  of  pro- 
tection merely;  and  although  the  officer  may  execute  such  process 
and  be  protected,  yet,  if  it  is  in  fact  void  for  want  of  jurisdiction 
in  issuing  it,  he  may  refuse  to  execute  it,  and  no  action  will  lie 
against  him  for  such  refusal.  State  ex  rel.  v.  Hamilton,  supra-, 
Newburg  v.  Munshower,  29  Ohio  St.  617,  23  Am.  Rep.  769;  Reid  v. 
Stegman,  99  N.  Y.  646;  Earl  v.  Camp,  16  Wend.  562;  Cornell  v. 
Barnes,  7  Hill,  35.  When  the  process  seems  to  be  fair  on  its  face, 
it  next  becomes  necessary  to  the  officer's  protection  that  he  proceed 
upon  it  as  the  law  directs.  And  at  this  point  it  must  be  borne  in 
mind  that  the  law  constantly  presumes  that  public  officers  charged 
with  the  performance  of  official  duty  have  not  neglected  the  same, 
but  have  duly  performed  it  at  the  proper  time  and  in  the  proper 
manner.  In  the  .absence  of  evidence  to  the  contrary,  this  presump- 
tion will  prevail,  but  it  is  not  an  indisputable  one.  and  may  be  over- 
come by  countervailing  evidence.  Tlie  fact,  if  it  be  a  fact,  that  the 
relators  had  purchased  the  house  and  were  in  possession  of  it  when 


307  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  101 

this  case,  Judge  Marcy,  after  reviewing  the  English  and 
American  authorities  then  existing,  concluded  as  fol- 
lows: "In  my  judgment,  the  same  principle  which  gives 

tlie  foreclosure  suit  was  fomincncod.  and  thn  fnrtlior  fa^t  tliat  tliey 
were  uot  made  parties  to  said  suit,  canuot  affect  the  sheriff  and  his 
Kureflos,  if  the  order  of  snlo  under  which  ho  was  actihp  was  fair 
on  its  face,  ami  the  sheriff  proceeded  upon  it  lawfully.  For  aujeht 
that  Is  shown  In  the  complaint,  the  order  of  sale  under  which  the 
sheriff  was  actinj;  was  fair  upon  its  face  in  all  respects.  It  was  a 
duty,  therefore,  which  the'sherifi'  owed  the  plaintiff  in  the  foreclos- 
ure suit,  to  take  possession  of,  and  sell,  the  liouse  and  other  prop- 
erty named  in  the  writ.  The  juoper  service  of  this  writ  upon  the 
property  descrllied  therein  required  the  sheriff  to  take  jiosse-sion  of 
the  property,  either  actually  or  constructively.  For  the  purpose  of 
reducing  the  house  to  possession,  the  sheriff  had  a  right  to  enter  it 
if  he  saw  pi'oper  to  do  so.  The  house  being  personal  property,  the 
sheriff's  possession,  when  once  taken  under  the  writ,  was  as  exclu- 
sive as  if  it  had  been  personal  property  of  some  other  kind.  The 
sheriff  was  the  officer  of  the  law,  and  his  possession  was  the  pos- 
session of  the  law.  It  was  the  privilege  of  the  sheriff  to  remove 
the  propei'ty  of  the  relators  from  the  house,  so  far  as  can  be  seen 
from  the  complaint,  not  only  that  the  exclusive  possession  and  con- 
trol of  the  house  miuht  be  in  himself  up  to  and  at  the  time  of  the 
sale,  but  also  that  he  might  thereafter  deliver  the  possession,  untram- 
meled  and  unqualified,  if  it  could  so  be,  to  the  purchaser.  And  it 
would  not  matter  whether  the  property  of  the  relators  was  re- 
moved from  the  house  before  or  after  the  sale.  From  the  time  the 
sheriff,  under  the  order  of  sale,  took  possession  of  the  house,  it  was 
in  his  custody  as  the  agent  or  officer  of  the  law  until  the  proper 
time  for  its  sale,  and  for  a  reasonable  time  after  the  sale,  to  allow 
the  purch.'iscr  to  receive  and  remove  it.  Gilbert  v.  Moody,  17  Wend. 
354;  Peacock  v.  I'urvis,  2  B.  &  B.  3G2;  Blades  v,  Arundale,  1  Maul. 
&  Sel.  711;  Bradly  Distress,  84.  The  law  confided  in  the  sheriff,  ex- 
pecting him  to  so  exercise  the  power  with  which  he  was  clothed 
as  would  best  promote  the  interests  of  the  parties,  plaintiff  and  de- 
fendant, to  the  writ.  He  was  not  acting  for  and  owed  no  duty  offi- 
cially, as  connected  with  the  writ,  to  the  relators.  If,  in  his  opin- 
ion, it  would  in  any  way  promote  the  interests  of  the  parties  to  the 
writ  to  remove  the  relators'  property  from  the  house,  we  do  not 
think  his  right  to  do  so  could  be  questioned  if  the  removal  was  not 
negligently  made.  In  thus  holding  we  do  not  lose  sight  of  the  rule 
that  an  officer  may  so  act  or  interfere  with  the  property  of  a 
stranger  or  third  person  that  his  writ,  although  fair  on  its  face,  will 
not  protect  him;  as,  for  example,  where  he  takes  the  goods  of  one 
person  upon  a  writ  against  another.     In  that  case  the  officer  does 


§  101  DUTIES  AND  LIABILITIES  OF  OFFICERS.  3GS 

protection  to  a  miiiisterial  officer,  who  executes  the  pro- 
cess of  a  court  of  general  jurisdiction,  should  protect 
him  when  he  executes  the  process  of  a  court  of  limited 
jurisdiction,  if  the  subject-matter  of  the  suit  is  within 
that  jurisdiction,  and  nothing  appears  on  the  face  of  the 
process  to  show  that  the  person  was  not  also  within 
it.     The  following  propositions,  I  am  disposed  to  be- 
lieve, will  be  found  to  be  well    sustained    by    reason 
and  authority:  That  where  an  inferior  court  has  not 
jurisdiction  of  the  subject-matter,  or,  having  it,  has 
not  jurisdiction  of  the  person  of  the  defendants,  all 
its  proceedings  are  absolutely  void;  neither  the  mem- 
bers of  the  court  nor  the  plaintiff  (if  he  procured  or 
assented  to  the  proceedings)  can  derive  any  protection 
from  them  when  prosecuted  by  a  party  aggrieved  there- 
by.   If  a  mere  ministerial  officer  executes  any  process^ 
upon  the  face  of  which  it  appears  that  the  court  had 
not  jurisdiction  of  the  subject-matter,  or  of  the  per- 
son against  whom    it  is  directed,    such    process    will 
afford  him  no  protection  for  acts  done  under  it.     If  the 

not  seize  the  goods  of  the  defenrlant.  or  take  possession  of  the  iden- 
tical property  named  in  the  writ,  and  which  he  is  commanded  to  sell, 
as  under  the  order  of  sale  in  the  case  at  bar;  but  he  voluntarily, 
and  without  any  authority  whatever,  takes  the  propery  of  one  not 
named,  nor  liable  under  the  writ  at  all,  to  pay  the  debt  of  another. 
It  is  wholly  different,  in  fact  and  upon  principle,  from  the  case 
where  the  act  complained  of  is  a  part  of,  or  an  approi»riate  incident 
to,  the  principal  thing  wliich  the  otficer  is  commanded  by  the  wx'it 
to  do.  In  the  case  at  bar  the  sheriff  had  no  discretion  to  use,  no 
judgment  to  exercise,  no  duty  to  perform  but  to  seize  the  property 
described  in  the  oi'der  of  sale;  and  this  was  the  sheriff's  duty,  al- 
though the  relators  were  not  parties  to  the*  foreclosure  suit.  Buck 
V.  Colbath,  3  Wall.  334;  Wallace  v.  Holly,  13  Ga.  389,  58  Am.  Dec. 
518.  There  is  a  well-recognized  distinction  between  the  ordinary 
execution  and  an  order  to  sell  specifically  named  property.  Where 
there  is  a  judgment  of  foreclosure  against  specific  property,  it  is  a 
mandate  iipon  the  slieriff  to  sell  it.  See  Harris  v.  Glenn.  ."G  Ga. 
94:  Haydeu  v.  .Tolnison.  .j9  Ga.  101:  Ghipstead  v.  I'orter,  03  Ga.  220."*^ 
Tliompson  v.  State,  3  lud.  App.  371. 


3G9         -  DUTIES  AND  LlAlilLiTlES  OF  OFFICERS.  §  101 

subjoft-inatter  of  a  suit  is  within  tlie  jurisdiction  of 
a  court,  but  there  is  a  want  of  jurisdiction  as  to  tlic 
person  or  place,  the  officer  who  executes  process  issued 
in  such  suit  is  no  trespasser,  unless  the  want  of  juris- 
diction appears  by  sucli  process."  ^^ 

A  ministerial  officer  is  not  compelled  to  make  inves- 
tigations to  ascertain  whether  tho  magistrate  or  other 
officer  issuing  the  process  is  an  officer  de  jure,  or  an 
officer  de  facto  merely.  "The  principle  is  well  settled 
that  the  acts  of  officers  de  facto  are  as  valid  and  ef- 
fectual when  they  concern  the  jjublic,  or  the  rights  of 
third  persons,  as  though  they  were  officers  de  jure."  ^"^ 
"It  is  well  settled,  therefore,  that  the  lawful  acts  of 
a  de  facto  officer,  so  far  as  the  rights  of  third  persons 
are  concerned,  are,  if.  done  witliin  the  scope  and  by 
the  apparent  authority  of  his  office,  as  valid  and  bind- 
ing as  if  he  were  an  officer  lawfully  elected  and  quali- 
fied for  the  office  and  in  full  possession  of  it."  ^**  This 
rule  applies  to  justices  of  the  peace  and  other  judicial 
officers,  as  well  as  to  clerks  and  other  ministerial  of- 
ficers whose  duty  it  is  to  issue  writs  of  execution. 
Hence,  if  a  writ  purports  to  be  issued  upon  a  judgment 
of  a  court  or  judicial  officer,  by  an  officer  having  ap- 
]>arent  authority  to  issue  it,  the  officer  by  whom  it  is 
received  for  execution  ne^d  not  investigate  the  title 
to  office  either  of  the  judicial  officer  pronouncing  th<' 
judgment  or  of  the  ministerial  officer  issuing  the  writ, 
for  the  process  will  sustain  all  acts  done  in  obedienc  • 

3«  Followed  in  Coon  v.  Conpdon.  12  Wend.  40r,;  Parker  v.  Walmd. 
16  Wend.  514,  30  Am.  Dee.  124;  Che^'aray  v.  Jenkins,  1  Seld.  37':; 
Cornell  v.  Barnes.  7  Hill,  35;  Sheldon  v.  Van  Buskirk.  2  N.  Y.  477. 

8T  Wileox  V.  Smith.  5  ^Vend.  231.  21  Am.  Dec.  213;  Tbulemeyer  v. 
Jones,  37  Tex.  5G0;  Laver  v.  McGlachlin,  28  Wis.  3G4. 

88  Mechem  on  Public  Officers,  sec.  328. 
Vol.  I.-24 


§  101  DUTIES  AND  LIABILITIES  OF  OFFICERS.  370 

to  its  commands,  and  will  support,  if  it  is  a  writ  of  exe- 
cution, all  seizures  and  sales  made  tliereunder.^^ 

Officers  are  also  protected  where,  though  the  court 
had  jurisdiction,  the  writ  is  void  as  between  the  par- 
ties thereto  on  account  of  something  not  appearing 
on  the  face  thereof.  The  sheriff,  therefore,  need  not 
make  any  inquiries  to  ascertain  whether  the  judgment 
has  been  satisfied.  He  may  safely  assume  that  the 
plaintiff  would  not  ask  for,  nor  the  clerk  or  magistrate 
issue,  a  writ  to  enforce  a  paid  judgment.*^  Therefore, 
it  has  been  held  that  though  what  purports  to  be  a 
receipt  from  the  plaintiff  acknowledging  the  full  sat- 
isfaction of  the  writ  or  judgment  is  exhibited  by  the 
defendant  to  the  officer,  he  need  not  proceed  to  inves- 
tigate its  genuineness,  but  may,  nevertheless,  proceed 
to  coerce  the  satisfaction  of  the  writ  without  subjec- 
ing  himself  to  liability  to  the  defendant,  when  the 
genuineness  of  the  receipt  is  established.^^  If  such  be 
the  law,  then  the  remedy  of  the  defendant  must  be  by 
some  motion  to  quash  or  recall  the  writ,  made  in  the 
court  which  issued  it.*^ 

The  rule  that  an  officer  may  justify  under  a  writ 
valid  on  its  face  is  one  of  protection  merely.  If  he 
seeks  to  maintain  an  action,  he  cannot  rely  upon  the 
process  alone,  but  must  support  it  by  a  valid  judg- 
ment.*^ *    So  there  are  cases  in  which  the  process  alone 

89  Morton  v.  Leo,  28  Kan.  287;  Carl  v.  Rhener,  27  Minn.  293;  Ex 
parte  .Tolmson,  15  Neb.  512;  Mallett  v.  Gold  &  S.  M.  Co.,  1  Nev.  18S, 
90  Am.  Dec.  484;  Hamlin  v.  Kassafer,  15  Or.  456,  3  Am.  St.  Rep.  176. 

40  Mason  v.  Vance,  1  Snood,  178,  60  Am.  Dec.  144;  Luddiugton  v. 
Peck,  2  Conn.  700;  Lewis  v.  Palmer,  6  Wend.  367. 

41  Twitohell  v.  Shaw,  10  Cusli.  46,  57  Am.  Dec.  80;  Tlerney  v.  Fra- 
zler,  57  Tex.  4:i7;  Barr  v.  Combs,  29  Or.  399. 

42  Mason  v.  Vance,  1  Sneod,  178,  60  Am.  Dec.  144. 

42aDunlap  V.  Hunting,  2  Denio,  643,  43  Am.  Dec.  763;  Earl  v. 
Camp,  16  Wend.  562;  Horton  v.  Hendershot,  1  Hill,  118. 


371  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  101 

may  not  be  a  protection.  Thus,  an  officer  may  levy 
upon  property  in  the  possession  of  a  stranger  to  the 
writ,  who  derived  title  from  the  defendant  in  execu- 
tion prior  to  the  issuance  or  levy  of  the  writ.  Tiie  of- 
ficer may  retain  the  property  if  he  can  show  that  the 
transfer  was  actually  or  constructively  fraudulent, 
and  that  he  is  in  position  to  attack  it  on  that  ground. 
He  is  not  in  position  to  maintain  such  attack  unless 
the  plaintiff  in  execution,  whom  he  represents,  is  a 
creditor  by  judgment,  or  a  creditor  having  a  lien  on 
the  properly.  That  the  plaintiff  is  such  creditor  is 
not  established  by  the  execution  alone.  The  officer, 
to  make  his  justification  complete,  must  establish  it  in 
some  other  mode.  If  he  relies  upon  the  execution,  he 
must  support  it  by  avalid  judgment,'*^  or  by  some  other 
competent  evidence,  of  the  existence  of  a  debt  of  such 
a  character  as  to  afford  a  justification  for  the  seizure 
and  detention  of  the  property."*^  This,  however,  is 
scarcely  an  exception  to  the  rule  that  an  officer  is  pro- 
tected by  a  writ  regular  on  its  face,  for  the  writ  does 
not  purport  to  confer  immunity  for  any  acts  not  au- 
thorized by  it.  It  does  not  expressly  sanction  the  seiz- 
ure of  any  property  other  than  the  defendant's,  and,  if 
the  officer  undertakes  to  subject  other  property  to  the 
writ,  he  must  first,  at  his  peril,  satisfy  himself  of  the 

♦3  State  V.  Rucker,  19  Mo.  App.  587;  Thatcher  v.  Maack,  7  111.  App. 
635:  Bean  v.  Loftiis.  48  Wis.  371. 

**  Soxey  V.  Adkinson,  34  Cal.  346,  91  Am.  Dee.  698;  Damon  v. 
Rrynnt.  2  Pick.  412:  Mamlook  v.  White.  20  Cal.  600;  Rinohey  v.  Stry- 
ker.  28  N.  Y.  52.  84  Am.  Dec.  324;  Howard  v.  Manderfield,  31  Minn. 
337:  Townsly-Myriok  D.  G.  Co.  v.  Fuller,  58  Ark.  181,  41  Am.  St. 
Rep.  97;  Bogert  v.  Phelps,  14  "Wis.  92;  Bugbee  v.  Lombard.  &8  W^ls. 
271;  Brown  v.  Howard.  82  Me.  342;  Palmer  v.  McMaster,  10  Mont. 
390:  Ilakanson  v.  Brodke.  36  Neb.  42;  Brickman  v.  Boss.  67  Cal. 
604;  Braley  v.  Byrnes,  20  Minn.  439;  Brown  v.  Cline,  109  Cal.  159.  , 


§  102  DUTIES  AND  LIABILITIES  OF  OFFICERS.  372 

existence  of  all  the  circumstances  essential  to  justify 
his  action.  In  taking  the  property  of  a  stranger  to  the 
writ,  an  officer  does  not  act  in  obedience  to  it,  unless 
very  exceptional  cases  render  subject  to  the  writ  the 
property  of  a  person  not  named  therein.  By  taking 
the  property  of  a  third  person,  unless  these  very  ex-^ 
ceptional  circumstances  can  be  shown,  an  officer  is  not 
within  the  protecting  power  of  his  writ,  but  is  subject 
to  an  action  brought  on  behalf  of  any  interested  per- 
son, either  to  recover  the  property  itself  or  the  damages 
sustained  by  its  seizure  and  detention.*^  It  is  there- 
fore incumbent  on  an  officer  seizing  property  in  satis- 
faction of  a  writ  to  ascertain  at  his  peril  whether  such 
property  belongs  to  the  defendant  in  execution  and  is 
subject  to  the  writ.  An  exception  to  this  rule  exists 
when  the  writ  describes  specific  property,  in  which  case 
the  officer  is  justified  in  acting  under  it,  if  regular  on 
its  face.^® 

§  102.  Whether  the  Officer's  Knowledge  of  Irregulari- 
ties is  Material. — The  authorities  cited  in  the  preceding 
section  abundantly  sustain  the  proposition  that  an  offi- 
cer may  limit  his  inquiries  to  an  inspection  of  the  face 
of  the  writ;  and  that  he  is  not  to  be  held  responsible  for 
anything  of  which  the  writ  gives  no  notice,  and  of 
which  he  has  no  actual  knowledge.  But  in  some  in- 
stances, an  officer's  knowledge  may  have  placed  him  in 
possession  of  the  very  facts  which  render  the  writ  void 
between  the  parties  thereto.  Does  this  knowledge  be- 
come a  material  fact  in  determining  whether  he  is  re- 
sponsible for  acting  in  obedience  to  the  writ?    To  this 

45  Carpenter  v.  Tnnes.  16  Colo.  1G5.  25  Am.  St.  Rep.  25.5,  and  note; 
Jones  V.  Lamon.  92  Ga.  529;  Ilig  v.  Burl)ank,  59  111.  291;  Walker  v. 

•Wonrlerlick,  33  Neh.  504. 

46  State  V.  Halley,  71  Mo.  App.  200,  post,  §  254. 


373  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  102 

question  the  highest  courts  in  some  of  the  states  have 
given  a  response  in  the  negative.  To  go  beyond  the 
process  would,  in  the  opinion  of  the  courts  of  New 
York,  ''lead  to  a  new  and  troublesome  issue,  which 
would  tend  greatly  to  weaken  the  reasonable  protec- 
tion to  ministerial  officers.  Their  duties,  at  best,  are 
sufficiently  embarrassing  and  responsible;  to  require 
them  to  act  or  not  at  their  peril,  as  they  may  be  sup- 
posed to  know  or  not  the  technical  regularity  of  the 
party  or  magistrate,  seems  to  me  an  innovation  upon 
previous  cases,  and  against  the  reasons  and  policy  of 
the  rule.  The  experience  of  the  officer  will  soon  enable 
him  to  determine  whether  the  process  is  in  regular 
form  or  not,  or  he  can  readily  obtain  the  necessary  ad- 
vice; but  he  must  be  presumed  to  be  wiser  than  the 
magistrate,  if  even  a  knowledge  of  the  proceedings 
would  enable  him  to  decide  correctly  if  they  happen  to 
be  erroneous.''  *''  In  a  later  case  in  the  same  state  a 
warrant  was  issued  by  the  inspectors  of  elections,  and 
was  executed  by  an  officer  who  knew  that  these  inspec- 
tors were  without  jurisdiction.  The  court,  in  holding 
the  officer  justifiable,  said:  "Although  the  inspectors 
had  no  jurisdiction  of  the  subject-matter,  yet,  as  the 
warrant  was  regular  upon  its  face,  it  was  a  sufficient 
authority  for  the  arrest.  The  knowledge  of  the  officer 
that  the  inspectors  had  no  jurisdiction  is  not  impor- 
tant. He  must  be  governed  and  is  protected  by  the 
process,  and  cannot  be  affected  by  anything  he  has 
heard  or  learned  out  of  it."  **    It  has  also  been  decided 

47  Webber  v.  Gay.  24  Weud.  4S4. 

<8  People  V.  Wanou.  5  Hill.  44<);  to  same  effect.  Gott  v.  Mitchell, 
7  Blackf.  270:  Watson  v.  Watsou.  9  Goun.  140.  2.3  Am.  Dec.  324; 
Tierney  v.  Ftazier.  57  Tex.  437:  Rainey  v.  State,  20  Tex.  App.  4o5; 
see.  also,  State  v.  Weed.  1  Fost.  202.  n3  Am.  Dee.  18.S:  Brainard  v. 
Head,  1.")  La.  Ann.  489;  Wail  v.  TiumbuU,  10  Mich.  228;  Bird  v.  Per- 
kins, 33  Mich.  30. 


§  102  DUTIES  AND  LIABILITIES  OF  OFFICERS.  374 

that  an  officer  is  justified  in  serving  an  execution,  al- 
though he  knew  that  the  defendant  had  been  released 
in  proceedings  in  bankruptcy  from  the  judgment  on 
which  the  execution  issued.*^  It  has  been  held  that 
notice  of  the  satisfaction  of  a  judgment,  or,  at  least,  of 
facts  sufficient  to  incite  inquiry  upon  that  subject,  will 
not  render  an  officer  liable  for  injuries  resulting  to  the 
defendant  from  taking  further  measures  under  it.*®* 
We  are  conscious  that  the  courts  incline  more  and 
more  to  the  rule  which  absolutely  exempts  an  of- 
ficer from  liability  when  the  writ  is  fair  on  its 
face,  irrespective  of  his  knowledge  of  facts  estab- 
lishing, or,  at  least,  strongly  indicating  either  that  the 
judgment  is  void  or  that  it  has  been  previously  satis- 
fied, or  for  some  other  reason  ought  not  to  be  further 
enforced.  It  may  be  said  in  favor  of  this  rule  that, 
conceding  an  officer  to  have  knowledge  of  facts  render- 
ing the  further  enforcement  of  the  writ  wrongful,  it  is 
not  proper  to  require  him  to  judge  the  legal  conse- 
quences of  these  facts  and  to  thus  expose  him  to  peril 
from  the  plaintiff,  if  he  incorrectly  concludes  that  the 
writ  ought  not  to  be  enforced,  and  to  like  peril  from 
the  defendant,  if  the  officer  erroneously  determines 
that  such  facts  are  not  sufficient  to  deprive  the  plain- 
tiff of  the  right  to  the  enforcement  of  his  writ,  and 
furthermore,  that  it  is  against  sound  public  policy  to 
encourage  officers  to  be  negligent  or  tardy  in  rendering 
obedience  to  process,  and  then  to  permit  them  to  jus- 
tify their  delay  on  the  ground  that,  from  facts  which 
they  supposed  to  exist,  they  doubted  whether  the  pro- 
cess should  be  executed.     Where  a  sheriff  was  sued  in 

«Whitworth  v.  Clifton,  1  Moody  &  R.  531;  Tarlton  v.  Fisher,  2 
DonpT.  671. 

48a  Ante,  §  101. 


375  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  lu2 

trespass  for  the  seizure  of  property  under  executiou, 
and  pleaded  bis  process  in  justilication,  this  plea  was 
sought  to  be  met  by  evidence  that  the  judgment  had 
been  satisfied  before  the  issuing  of  the  writ,  and  that 
the  sheriff  was  aware  of  this  fact.  This  evidence  was 
pronounced  incompetent  against  the  sheriff  "because 
the  execution  on  which  he  seized  is  admitted  to  be 
regular  on  its  face,  and  to  have  been  issued  by  a  court 
of  compeieui  jurisdiction.  It  was  therefore  a  complete 
protection  to  him,  although  he  may  have  known  that 
the  judgment  on  which  it  was  based  had  in  fact  been 
satisfied.  A  sheriff  cannot  be  wiser  than  his  process, 
and  if  the  officer  or  tribunal  by  which  it  is  issued  has 
jurisdiction  of  the  subject  matter,  and  the  process  is 
regular  on  its  face,  showing  no  departure  from  the  law 
or  defect  of  jurisdiction,  it  will  afford  a  complete  pro- 
tection to  the  officer  executing  it  against  any  prosecu- 
tion  therefor,  and  he  is  not  affected  as  to  this  rule  of 
protection  by  anything  he  may  have  heard  or  learned 
outside  of  the  process."  °** 

The  rule  that  protects  officers  from  all  jurisdictional 
and  other  infirmities  not  disclosed  upon  the  face  of  the 
process,  and  not  otherwise  brought  home  to  their 
knowledge,  seems  to  us  sufficiently  comprehensive. 
All  mere  errors  and  irregularities  in  the  process,  such 
as  are  not  of  so  serious  a  character  as  to  render  it  void 
as  between  the  parties  thereto,  ought  not  to  be  noticed 
by  the  sherilT;  for  as  long  as  the  parties  acquiesce,  cer- 
tainly he  ought  not  to  be  liable  for  executing  the  writ. 
But  there  is  a  class  of  cases  in  which  the  process,  on 
account  of  some  infirmity  in  the  judgment  or  in  the 
w^rit,  has  no  validity.  Not  only  the  plaintiff  but  also 
innocent  purchasers  are  precluded  from  acquiring  any 

eo  Barr  v.  Combs.  29  Or.  300. 


§  102  DUTIES  AND  LIABILITIES  OF  OFFICERS.  376 

benefit  therefrom.  But  as  ministerial  ofiQcers  are  con- 
stantlj  called  on  to  execute  process,  and  are  therefore 
frequently  exposed  to  the  hazard  of  being  left  without 
protection  for  their  acts  done  in  good  faith,  the  law  has 
wisely  interposed  in  their  belialf,  in  order  that  their 
position  should  not  be  intolerable.  This  indisposition 
has  not  been  such  as  in  all  cases  to  thrust  a  shield  be- 
tween them  and  the  persons  whom  they  have  injured 
in  their  attempts  to  execute  void  writs.  It  is  clear  that 
if  the  writ  gives  notice  of  the  matters  rendering  it  void, 
the  ofilcer  is  responsible;  for  while  it  is  reasonable  to 
protect  officers  against  secret  vices  in  the  proceedings, 
it  is  unreasonable  that  they  should  be  encouraged  in 
the  perpetration  of  a  legal  wrong  of  which  they  have 
been  notified.  But  suppose  that,  though  the  writ  is  in 
due  form,  the  officer  has  outside  of  the  writ  been  in- 
formed of  a  state  of  facts  which,  if  set  forth  in  the  writ, 
would  make  him  answerable  as  a  trespasser  for  its  at- 
tempted execution,  is  it  any  greater  hardship  to  re- 
quire him  to  know  the  legal  consequence  of  these  facts 
than  it  is  to  make  a  similar  requirement  when  his 
knowledge  had  been  obtained  from  an  inspection  of 
the  writ?  If  he  is  competent  to  determine  the  ques- 
tion in  the  one  case,  he  is  equally  so  in  the  other.  If 
the  judgment  set  forth  in  the  writ  was  not  in  truth  ren- 
dered, or  was  rendered  in  a  case  where  there  was  an 
absence  of  jurisdiction  either  over  the  subject-matter  or 
over  the  parties;  or  if  from  any  other  cause  the  pro- 
ceeding about  to  be  taken  by  the  officer  is  void  as  be- 
tween the  parties,  and  can  therefore  result  in  nothing 
but  outrage  and  wrong  perpetra^ted  under  the  forms  of 
law — why  should  he  be  encouraged  to  proceed?  If  he 
is  ignorant,  he  may  properly  be  awarded  the  protection 
we  accord  to  the  innocent  in  the  pursuit  of  a  path  mis- 


377  DUTIES  AND  LIABILITIES  OF  OFITCKUS.  §  102 

taken  for  tliat  of  duty.  But  if  he  knows  of  these  de- 
strojinj;  vices,  he  has  no  duty  to  proceed.  In  pro- 
ceedinjj:,  he  is  the  willful  and  conscious  instrument  of 
legal  oppression,  voluntarily  choosiny;  to  seize  the  per- 
son or  property  of  the  defendant  in  professed  obi'di(^nce 
to  a  mandate  which  he  knows  to  be  destitute  of  legal 
sanction;  and  he  ought  to  be  held  answerable  as  a 
trespasser  as  rigorously  as  any  party  to  the  suit,  or  any 
other  voluntary  participant  in  the  wrong/'^  Our 
views  upon  this  subject  have  been  illustrated  and  sus- 
tained by  a  recent  decision  of  the  supreme  judicial 
court  of  ^[assachusetts.  A  writ  w-as  issued  against 
the  master  of  a  steamship  authorizing  his  arrest  upon 
a  claim  that  a  sum  was  due  plaintiff  for  work  thereon. 
A  constable,  charged  with  the  execution  of  this  writ, 
went  to  the  vessel,  and,  before  making  any  arrest,  was 
there  informed  that  the  vessel  was  a  Norwegian  one, 
that  the  defendant  was  its  captain,  and  that  the  claim 
of  the  plaintiff  would  be  adjusted  at  the  consulate  of 
the  kingdom  of  Norway  and  Sweden  in  the  same  city. 
The  constable,  nevertheless,  arrested  and  handcuffed 
the  captain  and  kept  him  under  arrest  in  the  cabin  of 
the  vessel  until  the  claim  was  paid  under  protest.  By 
virtue  of  a  treaty  between  the  United  States  and  Swe- 
den and  Norway  jurisdiction  of  cases  of  the  class  in 
question  was  reserved  to  the  consuls,  vice-consuls,  and 
other  commercial  agents,  and  the  court  issuing  the 
writ  was  therefore  without  jurisdiction.  In  an  action 
against  the  constable  he  claimed  that  the  writ  was  fair 
upon  its  face,  and  that  he  could  not  be  charged  with  no- 

"  Sprague  v.  Birchard.  1  Wis.  4u7.  60  Am.  Dec.  393;  McDonald 
V.  Wilkie.  13  111.  22.  'A  Am.  Dec.  423;  BatchoUier  v.  Currier.  4.')  N. 
H.  460;  Watson  v.  Bodell.  14  Mees.  iV-  W.  57:  Grace  v.  Mifcliell.  n 
Am.  Rep.  613,  31  "Wis.  533;  Leachmau  v.  Dougherty,  81  111.  324. 


§  102  DUTIES  AND  LIABILITIES  OF  OFFICERS.  378 

tice  of  any  facts  not  disclosed  by  it.  This  claim  of  the 
defendant  was  overruled,  and  it  was  held,  in  substance, 
that  after  receiving  notice  from  which  it  appeared 
probable  that  the  court  issuing  the  writ  did  not  have 
jurisdiction  to  do  so,  that  it  was  the  duty  of  the  officer 
to  make  inquiry,  and  that,  if  he  chose  to  proceed  with- 
out such  inquiry  and  in  defiance  of  the  rights  of  the  de- 
fendant, he  was  liable  for  the  unlawful  arrest.^^ 

62  Tellefsen  v.  Fee,  168  Mass.  188,  60  Am.  St.  Itep.  379.  The  opin- 
ion of  the  majority  of  the  court,  so  far  as  applicable  to  this  sub- 
ject is  as  follows:  "It  appears,  therefore,  that  the  consul  of 
SAveden  and  Norway  had  exclusive  jurisdiction  of  the  controversy 
or  difference  between  Johnson  and  Tellefsen,  and  that  the  muni- 
cipal court  of  the  city  of  Boston  had  no  jurisdiction  either  of  the 
subject  matter  or  of  the  persons  of  the  parties  in  the  action  which 
the  seaman  saw  fit  to  bring  against  the  master.  The  officer  who 
arrested  the  master  was  therefore  acting  illegally  and  without  justi- 
fication, and  is  liable  in  this  action  unless  he  is  protected  by  vir- 
tue of  his  writ.  This  presents  a  question  of  some  difficulty  and 
one  which  is  not  wholly  free  from  doubt.  Before  proceeding  to 
consider  the  principal  question,  it  may  be  well  to  state  briefly  cer- 
tain principles  laid  down  by  the  courts  in  regard  to  which  there  is 
little  or  no  dispute.  Where  the  process  is  in  due  form  and  comes 
from  a  court  of  general  jurisdiction  over  the  subject  matter,  the 
officer  is  justified  in  acting  according  to  its  tenor,  even  if  irregu- 
larities making  the  process  voidable  have  pi'eviously  occurred. 
Savacool  v.  Boughton,  o  Wend.  170,  21  Am.  Dec.  181;  Earl  v.  Camp, 
16  Wend.  5G2;  Ela  v.  Shepard,  32  N.  H.  277;  Howard  v.  Proctor. 
7  Gray,  328;  Dwinnels  v.  Boynton,  8  Allen,  310;  Chase  v.  Ingalls, 
97  Mass.  524;  Hubbard  v.  Garfield,  102  Mass.  72;  Bergin  v.  Hay- 
ward,  102  Mass.  414;  Rawson  v.  Spencer,  113  Mass.  40;  Chesebro 
V.  Barme,  103  Mass.  79,  82;  Hines  v.  Chambers,  29  Minn.  7;  Hann 
V.  Lloyd,  50  N.  .T.  L.  1.  Where,  however,  the  process  is  void  on  its 
face,  the  officer  is  not  protected.  Clark  v.  Woods,  2  Ex.  395;  Pearce 
V.  Atwood,  13  Mass.  324;  Eames  v.  Johnson.  4  Allen,  382;  Thurs- 
ton V.  Adams,  41  Me.  419;  Harwood  v.  Siphers,  70  Me.  464;  Brown 
V.  Howard,  86  Me.  342;  Rosen  v.  Fischel,  44  Conn.  371;  Frazier  v. 
Turner,  76  Wis.  502;  Sheldon  v.  Hill.  33  Mich.  171;  Poulk  v.  Slo- 
cum,  3  Blackf.  421.  An  officer  is  bound  to  know  the  law,  and  to 
know  the  jurisdiction  of  the  court  whose  officer  he  is.  If,  there- 
fore, he  does  an  act  in  obedience  to  a  precept  of  the  court,  and 
the  court  has  no  jurisdiction  in  the  matter,  either  because  the  stat- 
ute under  which  the  court  acted  is  unconstitutional,  or  there  is  a 


379  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  102 

It  lias  soiiii'tinies  boon  insistod  tliat  an  oflicor  should, 
or,  at  loast,  might  look  bohind  his  writ  for  the  purpose 
of  inquiring  rospocting  facts  which,  if  existing,  might 

want  of  jurisdiction  for  any  other  reason,  it  wonld  seem  that  the 
officcx'  is  not  i)rotoeted.  There  are  manj-  authorities  to  this  effect: 
Fislier  v.  ^MrCirr.  1  Gray,  1,  43,  Gl  Am.  Dee.  381;  "Warren  v.  Kel'ey. 

80  Me.  512;  P.atchelder  v.  Currier,  45  N.  II.  400;  Thurston  v.  Martin. 
5  Mason,  VJl;  Campbell  v.  Sherman,  o.j  AVis.  103;  Sumner  v.  Beeler. 
50  Ind.  341,  10  Am.  Rep.  718;  The  Marshalsea,  10  Rep.  G8b;  Crepps 
V.  Durden,  Cowp.  640;  Brown  v.  Compton,  8  Term.  Rep.  424; 
Watson  V.  Bodell.  14  Moes.  &  W.  57.  Whether  this  doctrine  ap- 
plies to  a  case  lilie  the  present,  where  the  court  had  general  juris- 
diction over  the  subject  matter,  but  no  jvu-isdiction  over  the  par- 
ticular controversy  between  the  parties,  and  no  jurisdiction  over 
their  persons,  we  need  not  decide,  liecause  on  the  facts  in  this  case 
we  are  of  opinion  that  the  officer  may  be  held  liable.  He  was  in- 
formed before  making  the  arrest  that  the  vessel  was  a  Norwegian 
vessel,  and  the  captain  of  the  vessel  a  Norwegian,  and  that  the 
claim  of  Johnson  would  be  adjusted  at  the  consiilate  of  the  King- 
dom of  Sweden  and  Norway.  Being  informed  of  the  facts,  he  was 
bound  to  know  the  law,  that  the  court  had  no  jurisdiction  over  the 
person  of  the  captain  or  the  subject  matter  of  the  action:  S]irague 
V.  Bichard,  1  Wis.  457,  404,  409,  00  Am.  Dec.  303;  Grace  v.  Mitchell. 
31    Wis.    533,  539,  545,  11  Am.  Rep.  013;  Leachman  v.  Dougherty, 

81  111.  324,  327,  328.  There  are,  without  doubt,  cases  which  lay 
down  a  more  stringent  rule,  and  say  that  the  officer  need  not  look 
beyond  his  precept,  and  is  not  bound  to  take  notice  of  extrinsic 
facts;  but  all  of  these  are  cases  which  are  distinguishable  from  the 
case  at  bar.  The  leading  case  on  this  subject  Is  People  v.  Warren, 
5  Hill.  440.  The  defendant  was  indicted  for  assaulting  an  officer. 
The  Inspectors  of  an  election  issued  a  warrant  to  a  constable  for 
the  arrest  of  the  defendant,  for  interrupting  the  proceedings  at 
the  election  by  disorderly  conduct  in  the  presence  of  the  inspectors 
The  defendant  offered  to  show  that  he  had  not  been  in  the  pres- 
ence of  the  inspectors  at  any  time  during  the  election  and  that  the 
constable  knew  it.  This  was  held  to  be  rightly  excluded.  The  opin- 
ion is  per  curiam,  and  is  very  brief.  While  it  says  that  the  in- 
spectors had  no  jurisdiction  of  the  subject  matter,  yet  the  clear 
meaning  is  that,  if  the  defendant  was  not  In  their  presence,  they 
acted  in  excess  of  their  jurisdiction.  Knowledge  by  an  officer 
that  a  man  was  innocent  would,  of  course,  be  no  excuse  for  assault- 
ing the  officer,  if  he  arrested  the  man  upon  a  warrant  from  a  court 
of  competent  jurisdiction.  An  officer  In  a  criminal  case  is  obliged 
to  obey  his  warrant,  whatever  his  knowledge  ma.v  be.  This  dis- 
poses also  of  the  case  of  State  v.  Weed,  21  N.  n.  2G2,  53  Am.  Dec. 


§  102  DUTIES  AND  LIABILITIES  OF  OFFICERS.  3S0 

give  it  a  more  extended  operation  than  its  face  indi- 
cates, as  where  it  is  claimed  that  a  cause  of  action  upon 
which  a  judgment  was  rendered  was  such  that  no.ex- 

188.  Severnl  cases  have  been  called  to  our  atteution  in  which  there 
are  dicta  to  the  effect  that  an  officer  is  not  bound  to  looli  beyond 
his  precept,  even  if  he  has  knowledge  that  the  court  has  no  juris- 
diction; but  an  examination  of  these  cases  shows  that  the  facts 
known  to  the  officer  did  not  affect  the  jurisdiction  of  the  court, 
hut  related  to  irregularities  in  the  prior  proceedings,  or  to  matters 
merely  of  defense  to  the  action.  See  cases  above  cited.  Of  course, 
where  the  court  has  jurisdiction  of  the  subject  matter  and  of  the 
parties  to  an  action,  knowledge  on  the  part  of  the  officer,  or  in- 
formation to  him  that  there  is  some  irregularity  in  the  proceeding, 
can  make  no  difference.  Underwood  v.  Robinson,  106  Mass.  206. 
Nor  can  it  make  any  difference  that  the  officer  is  informed  that 
there  is  a  defense  to  the  action,  such  as  that  the  defendant  has  a 
receipt,  Twitchell  v.  Shaw,  10  Cush.  46,  57  Am.  Dec.  80;  or  a  dis- 
charge in  insolvency:  Wilmarth  v.  Burt,  7  Met.  257;  or  that  the 
defendant  is  an  infant.  Gassier  v.  Fales,  139  Mass.  461.  But  the 
question  of  jurisdiction  is  a  more  serious  matter,  and  if  facts  are 
brought  to  the  attention  of  the  officer  about  which  he  can  have 
no  reasonable  doubt,  and  he  knows,  or  is  bound  to  know,  that  on 
these  facts  the  court  has  no  jurisdiction  of  the  controversy,  he  may 
well  be  held  to  proceed  at  his  peril.  We  can  see  no  hardship  upon 
the  officer  in  holding  him  responsible  in  this  case  for  an  illegal  ar- 
rest and  for  a  false  imprisonment.  If  an  officer  has  reasonable 
cause  to  ddubt  the  lawfulness  of  an  arrest,  he  may  demand  from 
the  plaintiff  a  bond  of  indemnity,  and  so  save  himself  harmless: 
Marsh  v.  Gold,  2  Pick.  285,  290.  We  are  not  aware  that  this  case 
has  ever  been  doubted;  and,  in  practice,  bonds  of  indemnity  have 
often  been  required.  In  the  case  at  bar.  after  receiving  full  in- 
formation, he  chose  to  proceed,  and,  iij  defiance  of  the  treaty,  to 
subject  the  subject  of  a  foreign  nation  to  a  gross  indignity,  for  the 
purpose  of  extorting  money  from  him,  under  the  guise  of  a  pre- 
cept which  the  court  had  no  jurisdiction  to  issue,  and  which  it 
would  not  have  issued  had  the  facts  been  before  it.  We  approve 
of  the  language  of  Mr.  Freeman  in  21  Am.  Dec.  204,  where,  after 
a  discussion  of  the  cases  bearing  upon  the  question  of  the  liabil- 
ity of  an  officer,  he  says:  'We  apprehend,  at  all  events,  that  the 
protection  of  process  cannot  so  far  extend  as  to  protect  an  of- 
ficer who,  from  all  the  circumstances  of  the  case,  does  not  appear 
to  have  acted  in  good  faith,  and  whose  conduct  shows  that  his  eyes 
were  willfully  closed  to  enable  him  not  to  see  and  know  that  hp 
was  a  too  ready  instrument  in  the  perpetration  of  a  grievous 
wrong.' " 


3S1  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  103 

emptions  from  execution  could  be  claimed  against  it, 
or  that  the  debt,  though  apparently  the  personal  debt 
of  the  defendant  in  execution,  was  in  fact  a  liability  ex- 
isting- against  him  as  a  mc-mber  of  a  partnership.  The 
decisions  upon  this  subject  are  meager.  So  far  as  they 
extend,  they  indicate  that  the  olUcer  need  not  look  be- 
yond his  writ  for  either  of  thesie  purposes,^"  and,  per- 
haps, that  he  will  not  be  permitted  to  do  so,  however 
willing  he  may  be.°^ 

§  103.  Officer  Must  Execute  Voidable  Process—Other- 
wise if  it  be  Void. — When  an  officer  has  decided  that  the 
execution  delivered  to  him  for  service  will  justify  him 
in  acts  done  in  obedience  thereto,  he  may  next,  if  he 
chooses  to  do  so,  consider  whether  he  will  be  justified 
in  refusing  to  execute  it.  There  are  many  dicta  in 
which  the  general  assertion  is  made,  that  a  ministerial 
officer  must  execute  all  process  regular  on  its  face,  and 
appearing  to  emanate  from  a  court  of  competent  juris- 
diction. This  statement  is  by  no  means  true.  A  writ 
may  be  voidable  to  the  extent  that  it  may  be  set  aside 
on  motion,  and  yet  the  parties  msLj  choose  not  to  make 
such  motion;  or  if  the  motion  be  made,  the  irregularity 
may  be  such  that  the  court  will  amend  but  not  quash 
the  writ.  Whenever  the  writ  is  amendable,  or  is  such 
that,  by  the  failure  of  the  proper  party  to  move  for  its 
vacation,  it  may  be  lawfully  executed,  and  may.  by  a 
sale  thereunder,  transfer  the  title  of  the  defendant,  the 
sheriff  is  bound  to  execute  it,  and  to  take  no  notice  of 
the  irregularity,  and  is  as  liable  to  the  plaintiff  for  any 
neglect  or  misconduct  in  its  execution  as  though  it  were 

83  Swan  V.  Gilbert.  67  IlL  App.  2.36. 

84  McLaren  v.  Anderson.  SI  Ala.  106. 


§103  DUTIES  AND  LIABILITIES  OF  OFFICERS.  382 

in  all  respects  regular.^**  But  where  the  writ,  though 
regular  on  its  face,  is  in  fact  void  between  the  parties, 
the  officer  is  not  compelled  to  execute  it.  "The  cases 
recognize  and  affirm  a  distinction  between  process 
which  is  void  and  that  which  is  voidable  merely,  and 
it  is  repeatedly  stated  that  when  the  process  is  void, 
the  sheriff  is  not  bound  to  execute  it,  nor  liable  for  any 
neglect,  partial  or  total.  But  otherwise  if  the  process 
is  voidable  only;  because  if  the  defendant  in  execution 
does  not  seek  to  avoid  the  process,  and  where  the  court 
might,  if  applied  to,  allow  an  amendment,  the  sheriff 
cannot  avail  himself  of  the  defects  in  the  process."  *** 

B8  BIssell  V.  Kip,  5  Johns.  89;  Cable  v.  Cooper,  15  Johns,  152;  Mar- 
tin  V.  Hall,  70  Ala.  421;  Milburn  v.  State,  11  Mo.  188,  47  Am.  Dec. 
148;  Reams  v.  McNail,  9  Humph.  542;  Jones  v.  Cook,  1  Cow.  309, 
where  the  writ  was  tested  out  of  terra;  People  v.  Dunning,  1  Wend. 
16,  where  the  writ  had  no  seal;  Walden  v.  Davison,  15  Wend. 
575,  the  writ  lieing  directed  to  wrong  officer;  Ontario  Bank  v.  Hal- 
lett,  8  Cow.  192,  where  writ  issued  after  a  year  and  a  day:  Parmlee 
V,  Hitchcock,  12  Wend.  96,  the  writ  varying  from  the  judgment; 
Bacon  v.  Cropsey,  7  N.  Y.  195,  where  the  writ  issued  prematurely; 
Samples  v.  Walker,  9  Ala.  726,  where  wrong  return  day  was  desig- 
nated; Oris  wold  v.  Chandler,  22  Tex.  637,  where  officer  attempted 
to  excuse  himself  on  the  ground  that  the  summons  was  not  prop- 
erly  served:  Chase  v.  Plymouth,  20  Vt.  469,  50  Am.  Dec.  52;  Stod- 
dard V.  Tarbell,  20  Vt.  321;  Ex  parte  Cummins,  4  Pike,  103;  Cody 
V.  Quinn,  6  Ired.  191,  44  Am.  Dec.  75;  Arnold  v.  Commonwealth,  8 
B.  Mon,  109;  Jordan  v.  Porterfield,  19  Ga.  139,  63  Am.  Dec.  801; 
Roth  V.  Duvall,  1  Idaho,  149;  Singer  S.  M.  Co.  v.  Barnett,  76  Ga. 
377,  whore  there  was  a  variance  between  an  execution  and  a  judg- 
ment respecting  the  date  from  which  interest  was  collectible:  Win- 
chell  V.  McKenzie,  35  Neb,  813,  where  an  order  authorizing  the 
issuing  of  a  writ  was  .defective  in  not  having  impressed  upon  it 
the  seal  of  the  court;  Bachelder  v.  Chavez,  5  N.  M.  562,  where  the 
execution  varied  from  the  judgment  in  the  amount  of  the  recovery. 

68  Ginochio  v.  Orser,  1  Abb.  Pr.  434.  See,  as  to  the  right  of 
ministerial  officers  to  refuse  to  serve  void  process,  and  their  ex- 
emption from  all  liability  for  neglect  in  such  service,  Stevenson 
V.  McLean,  5  Humph.  332,  43  Am.  Dec.  434;  Albee  v.  Ward.  8  Mass. 
79;  Ezra  v.  Manlove,  7  Black f.  389;  .Tones  v.  Cook,  1  Cow.  309; 
Earl  V.  Camp,  16  Wend.  562;  Cornell  v.  Barnes,  7  Hill,  35;  McDuffie 


3S3  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  104 

§  104.  Must  See  that  the  Writ  is  Enforceable  in  His 
County. — The  execution  may  be  regular,  and  in  all  re- 
spects valid  where  it  was  issued,  and  yet  not  authorize 
its  service  by  the  officer  to  whom  it  is  delivered.  By 
the  rules  of  the  common  law,  the  writs  of  each  court 
were  only  capable  of  enforcement  within  the  territorial 
limits  of  its  jurisdiction.^''  In  most  of  the  United 
States,  statutes  have  been  enacted  allowing  courts  of 
general  jurisdiction  to  issue  writs  of  execution  to  any 
county  within  the  state.  But  this  privilege  is  not  gen- 
erally accorded  to  courts  of  limited  jurisdiction.  It  is, 
therefore,  still  necessary  for  the  officer  to  see,  in  the 
service  of  writs  from  these  latter  courts,  that  he  does 
not  act  beyond  llie  limits  of  tlieir  autliority.  So  when 
intrusted  with  the  execution  of  a  writ  of  his  own  county 
the  officer  must  remember  that  his  authority  under  the 
writ  is  confined  to  the  county.  He  has  no  legal  power 
to  levy  on  lands  or  property  outside  of  the  county.*^® 
So,  if  by  law,  the  authority  of  a  constable  is  restricted 
to  a  particular  township  or  district,  his  acts  beyond  it 
are  not  official,  and  a  levy  or  sale  made  by  him  outside 
of  such  township  or  district  is  vold.^^  This  is  true,  al- 
1  hough  a  tract  of  land  belonging  to  the  defendant  is 
situated  partly  in  one  county  and  partly  in  another.*^® 
The  acts  of  an  officer  outside  of  his  county  or  baili- 
wick are  unofficial  and  necessarily   void,    unless   ex- 

V.  Boddoe,  7  Hill,  578;  Anonymous,  1  Vent.  259;  Squibbs  v.  Ilale,  2 
Mod.  29;  Hill  v.  Wait,  5  Vt.  124. 

87  Chiles  V.  Hoy,  6  T.  B.  Mon.  47;  People  v.  Van  Eps,  4  Wend.  3S7. 

58  Kiiitor  V.  .Tenks,  43  Pa.  St.  445;  Dinkgrave  v.  Sloan,  13  La.  Ann. 
393;  Kuuk  v.  St.  John,  29  Barb.  585;  Short  v.  nepburn,  75  Fed. 
Rep.  113;  Dederlck  v.  Brandt,  16  Ind.  App.  2G4;  Benson  v.  Smith, 
42  Me.  418,  6G  Am.  Dec.  285;  Stephenson  v.  Doe,  8  Blackf.  508,  4S 
Am.  Dec.  489;  Needles  v.  Frost,  2  Okla.  19. 

69  Lewis  V.   Norton,  164  Mass.  209. 

«o  Finley  v.  R.  R.  Co.,  2  Rich.  5G7. 


§  104  DUTIES  AND  LIABILITIES  OF  OFFICERS.  S£* 

pressly  or  impliedly  authorized  by  some  statute.  Stat- 
utes upon  this  subject  have  been  enacted  in  several  of 
the  states  for  the  purpose  of  enabling  a  sheriff  of  one 
county  to  levy  upon  and  sell  a  tract  of  land  lying; 
in  two  or  more  counties.  Thus,  the  code  of  Georgia  de- 
clares that  a  sheriff  or  other  levying  oflicer  shall  not  sell 
land  out  of  the  county  in  which  he  is  sheriff,  or  such 
officer,  except  when  the  defendant  in  execution  shall 
have  a  tract  or  tracts  of  land  divided  by  the  line  of  the 
county  of  his  residence,  in  which  case  it  may  be  sold 
in  the  county  of  his  residence,  or,  if  such  tract  of  land 
is  in  a  county  other  than  that  of  the  defendant's  resi- 
dence, it  may  be  levied  upon  and  sold  in  either  county. 
Under  this  statute  a  levy  upon  land  of  the  defendant 
lying  in  two  counties,  made  by  an  officer  of  a  county 
in  which  he  is  not  a  resident,  cannot  be  sustained.*'-*^ 
In  Illinois,  lands  situate  in  two  counties  were  sold  en 
masse  under  a  decree  in  chancery,  subject  to  redemp- 
tion. Other  judgment  creditors  issued  their  execution 
to  the  sheriff  of  one  of  the  counties  and  caused  him  to 
pay  the  amount  necessary  to  effect  a  redemption  from 
the  chancery  sale  and  to  thereupon  levy  upon  each  of 
the  tracts  redeemed.  The  sheriff  sold  these  tracts  en 
masse  and  in  due  time  issued  his  deed  pursuant  to  his 
sale.  This  conveyance  was  assailed  as  void  as  to  land* 
situate  in  the  county  of  which  the  sheriff  was  not  an 
officer.  It  was  held,  however,  that  the  judgment  cred- 
itor had  a  right  to  redeem,  and,  under  the  circum- 
stances, because  the  original  sale  was  en  masse,  could 
exercise  this  right  only  by  levying  upon  and  selling  all 
the  property  lying  in  both  counties;  that  the  statute 
giving  the  right  of  redemption  contemplated    that  it 

61  Fambrough  v.  Amis,  58  Ga.  519. 


385  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  105 

should  be  exercised  in  every  case  in  which  a  sale  of 
projxfrty  had  been  made  under  any  judgment  or  decree, 
and,  as  it  could  be  exercised  in  the  case  before  the 
court  only  by  a  single  redemption  and  sale  of  the  two 
tracts  situated  in  dilTerent  counties,  the  sheriff  of  one 
of  those  counties  was  impliedly  authorized  to  make  a 
levy  and  sale  affecting  the  title  to  the  lands  in  the 
other*^ 

§  105.  Satisfaction  or  Suspension  of  the  Writ.— An 
execution,  valid  when  placed  in  the  officer's  hands,  may 
thereafter  cease  to  justify  the  ofiflcer  in  its  fui-ther  en- 
forcement. He  is,  however,  authorized  to  proceed  un- 
til he  has  knowledge  that  it  has  been  satisfied  or  sus- 
pended.^ Indeed,  it  has  been  held  that  notice  to  him 
of  its  satisfaction  is  not  alone  sufficient  to  deprive  him 
of  authority  to  proceed,  to  the  extent  of  making  him 
a  trespasser  in  respect  to  his  future  acts,  and  that  he 
need  not  proceed  to  investigate  the  authenticity  of 
the  receipt  exhibited  to  him  and  purporting  to  be  in 
full  satisfaction  of  the  judgment  on  which  his  writ  is 
based.**^  If  a  supersedeas  issues,  the  sheriff  need  not 
question  its  propriety,  except  so  far  as  to  ascertain 
that  the  court  had  jurisdiction  to  grant  it^  The  al- 
lowance of  a  writ  of  error  operates  as  a  supersedeas.®* 
After  notice  of  such  allowance,  or  of  any  other  super- 
sedeas, an  officer  who  proceeds  with  the  execution  of 
the  writ  is  a  trespasser.**'^ 

«2  Oldfield  V.  Eulert,  148  111.  014,  39  Am.  St.  Rep.  2,31. 

63  Johnson  v.  Fox,  51  Ga.  270;  Bryan  v.  Hubbs,  69  N.  C.  428. 

64  Ante,  §  102. 

65  Williams  v.  Stewart,  12  Smedes  &  M.  533. 

«6  Perkins  v.  Woolaston,  1  Salk.  322;  Meagher  v.  Vandyk,  2  Bos. 
&  P.  370;  Braithwaite  v.  Brown.  1  Chit.  23S. 

cTBolshaw  V.  Marshall.  4  Barn.  &  Adol.  ;;30;  Blea.«;dale  v.  Darby, 
»  Price.  (iOG;  O'Dounell  r.  Mullin.  27  Pa.  St.  199,  G7  Am.  Dec.  458; 
Vol.  I.— 25 


§  lOG  DUTIES  AND  LIABILITIES  OF  OFFICERS.  386 

§  106.  When  the  Writ  Ceases  to  be  in  Force  by  Ex- 
piration of  Time. — Conceding  that  the  execution  placed 
in  the  oflicer's  hands  is  valid,  and  that  it  has  not  been 
satisfied  nor  stayed  by  an  order  of  court,  the  officer 
will  next  inquire  how  long  it  will  continue  in  force, 
so  as  to  protect  him  in  its  attempted  enforcement.  Of 
course  it  is  the  duty  of  the  officer  to  proceed  to  exe- 
cute the  writ  without  waiting  for  the  latest  period; 
but  it  may  happen  that  its  execution  is  hindered  by 
circumstances  not  attributable  to  any  want  of  official 
diligence.  Hence,  the  frequent  necessity  of  acting  un- 
der the  writ  at  the  latest  period  authorized  by  law. 
The  first  act  to  be  done  by  the  officer  is  that  of  levying 
upon  the  property  of  the  defendant  when  the  execu- 
tion is  against  his  goods,  and  of  seizing  his  person 
when  the  writ  authorizes  such  seizure.  These  are 
initial  acts  done  for  the  purpose  of  producing  a  satis- 
faction of  the  writ,  but  not  likely  to  accomplish  their 
object  unless  succeeded  on  one  hand  by  the  retention 
and  sale  of  the  goods,  and  on  the  other  by  the  imprison- 
ment of  defendant.  By  the  levy  on  property  the  officer 
has  entered  upon  the  execution  of  his  writ,  and  has,  if 
tjie  levy  be  on  personalty,  acquired  a  special  property 
in  the  goods  seized.  By  the  principles  of  the  common 
law,  the  special  property  thus  acquired  was  not  di- 
vested by  the  return  of  the  writ.  The  officer  could, 
without  w^aiting  for  a  venditioni  exponas,  proceed  to 
sell  the  property  by  virtue  of  the  authority  conferred 
by  the  original  writ.*'*'  Wherever  some  statute  does 
not  provide  otherwise  an  officer  who  has  entered  upon 

Morrison  v.  Wright,  7  Port.  67;  Bryan  v.  Hubl)s,  C9  N.  C.  428;  Hop- 
Iviuson  V.  Sears,  14  Vt.  494,  39  Am.  Dec.  23G;  Buffandeau  v.  Ed- 
mondson,  17  Cal.  436,  79  Am.  Dec.  139. 
68  See  §  58. 


387  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  lOu 

the  execution  of  the  writ  before  the  return  day  thereof, 
by  a  seizure  of  or  levy  ujjon  property,  may,  after  the  re- 
turn day,  and  after  the  actual  return,  continue  to  hold 
the  property,  and  may  prosecute  such  further  proceed- 
ings as  may  be  necessary  to  convert  such  property, 
whether  it  be  real  or  personal,  into  money,  for  the  pur- 
pose of  satisfying;'  the  judgment."'*  The  power  of  an 
officer  to  make  a  sale  after  the  return  day  of  his  writ 
was  justified  on  the  ground  that  by  the  levy  of  the  writ 
he  acquired  a  special  property  and  right  of  possession 
in  the  chattels  seized,  and  that  in  this  special  property 
was  included  the  right,  independently  of  the  continu- 
ing force  of  the  writ,  to  sell  the  goods  in  furtherance 
of  the  object  for  which  they  were  seized,  to  wit,  the  sat- 
isfaction of  the  judgment.  This^justification  was  suffi- 
cient at  the  common  law,  under  which  nothing  but 
chattels  were  subject  to  sale  under  execution.  Very 
generally,  in  America,  real  property  may  also  be  sold 
under  execution.  Notice  of  the  sale  is  ordinarily  re- 
quired to  be  given  for  a  considerable  period  of  time,  and 
unless  the  officer  may  make  his  sale  after  the  return 
day,  many  levies  must  inevitably  remain  unproductive. 
It  has,  nevertheless,  been  held  in  several  of  the  statef? 

«9  Phillips  V.  Dnna.  .3  Sram.  5.^1:  State  v.  Eoberts.  1  Halst.  340, 
21  Am.  Dee.  fi2;  Cox  v.  .Toiner.  4  Bibb,  94;  Lester's  Case.  4  Humph. 
383;  Lojrsdon  v.  Spivey.  ."4  111.  104:  Savings  Tnstltiition  v.  Chinn.  7 
Bush.  5.'^9;  Heywood  v.  ITildreth.  9  Mass.  393;  Smith  v.  Spencer. 
3  Tred.  2.16;  Blair  v.  Compton.  33  ^fich.  414;  Barrett  v.  MeKenzie. 
24  Minn.  20;  Kane  v.  McCown,  .^5  Mo.  181;  Remin<!:ton  v.  Linthicnm, 
14  Bet.  84;  Wlieaton  v.  Sexton.  4  Wheat.  .^^03;  Barnard  v.  Stevens, 
2  Aiken.  429,  16  Am.  Dec.  733;  Doe  d.  Lanier  v.  Stone,  1  ^a^yks, 
329;  Stewart  v.  Severance.  43  Mo.  322,  97  Am.  Dec.  392:  Tayloe  v. 
Gaskins,  1  Dev.  295;  .Wriprht  v.  Howell.  35  Iowa.  288:  Gaitber  v. 
Martin,  3  Md.  14(');  rottinfrill  v.  Moss.  3  Minn.  223.  74  Am.  Dec. 
747:  Wood  V.  Colvin,  5  Hill.  230;  Moreland  v.  Bowlinjr.  3  Gill.  500; 
Devoe  v.  Elliott.  2  Caines.  243;  Bank  of  Missouri  v.  Bray,  37  Mo. 
194;  see  ante,  §  58;  Mason  v.  Bennett,  52  Fed.  Rep.  343. 


§  106  DUTIES  AND  LIABILITIES  OF  OFFICERS.  38a 

that  because  the  officer  acquired  no  special  property 
nor  right  of  possession  in  lands  levied  upon,  he  was 
without  power  to  sell  them  after  the  return  day  of  the 
writ.'"  To  so  hold  was  practically  to  make  the  writ  in- 
operative against  real  estate  for  weeks  prior  to  the  re- 
turn day;  for  of  what  avail  is  a  levy  when  no  sufficient 
notice  can  be  given  of  a  sale? — and  yet  it  is  conceded 
that  a  levy  may  be  made  upon  property,  real  as  well  as 
personal,  up  to  the  moment  when  the  writ  is  required 
to  be  returned. 

We  apprehend  that  the  reason  given  for  the  rule  at 
common  law  was  not  the  true  one — that  the  special 
property  and  the  right  of  possession  were  not  the  basis 
of  the  officer's  authority,  but  mere  incidents  of  it.  The 
authority  was  conferred  by  the  writ,  which  commanded 
him  to  make  the  money  of  the  goods  and  chatteltj  of 
the  defendant.  This  authority  could  not  be  pursued 
except  by  seizing  the  property  and  retaining  it  till  sold, 
and  the  possession  of  the  property  until  a  sale  could 
be  made  could  not  be  secured  to  the  officer  except  by 
conceding  to  him  a  special  property  and  right  of  pos- 
session sufficient  to  enable  him  to  vindicate  his  rights 
against  all  attempted  invasions  thereof.  When  real 
property  was  authorized  to  be  levied  on  and  sold,  it 
was  not  essential  to  the  effectual  exercise  of  the  power 
that  the  officer  should  seize  the  propei-ty,  but  it  was 
essential  that  by  some  act,  equivalent  to  a  levy,  ho 
should  consecrate  the  realty  to  the  satisfaction  of  his 

70  Overton  v.  Perkins,  10  Yerg.  328;  Rogers  v.  Cawood.  1  Swan, 
142,  55  Am.  Dee.  729;  Harden  v.  McKinnie,  4  Hawks.  279;  Seawell 
V.  Bank  of  Cape  Fear,  3  Dev.  279,  22  Am.  Dec.  722;  Morgan  v. 
Kamsey,  15  Ala.  190;  Smith  v.  Muudy.  18  Ala,  182,  52  Am,  Dec.  221; 
Sheppard  v.  Rhea,  49  Ala.  125;  see  ante,  §  .58;  Hawes  v.  Kueker, 
94  Ala.  106;  Buvkett  v.  Clark.  40  Neb.  400:  Buckley  v.  Mason,  52 
Keb.  639;  Terry  v.  Cutler,  4  Tex.  Civ.  App.  570. 


3S'J  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  IOC 

writ,  SO  tliat  no  act  of  the  defendant,  nor  of  any  one 
chiiiiiiii;^  under  liini,  could  deprive  the  plaiutifC  of  the 
rij-ht,  in  the  mode  provided  by  law,  of  appropriating 
such  realty  to  the  extinction  of  the  judgment  debt.    It 
was  also  essential  that  the  lien  or  right  created  by  the 
levy  should  not  become  abortive  from  the  mere  inabil- 
ity of  the  officer  to  make  a  sale  in  consonance  with  the 
requirements  of  the  statute  prior  to  the  return  day  of 
the  writ.     Hence,  the  better  opinion  is,  that  the  levy 
up<m  real  property  before  the  return  day  vests  in  the 
oflicer  a  power  of  sale  without  which  the  levy  would 
be  an  idle  act,  and  that  such  power  may  be  pursued 
after  such  return  day  as  effectively  as  before.'^^    A  few 
of  the  states  have  thought  proper  to  limit  this  power 
by  statutes  forbidding  its  exercise  after  the  return  day. 
In  these  states  a  sale  made  in  defiance  of  such  statutes 
is  undeniably  void.''    The  rule  allowing  the  officer  to 
make  a  sale  after  the  return  day  of  the  writ,  of  prop- 
erty then  levied  upon  by  him,  is  justified  on  the  ground 
that  title,  when  transferred  by  a  sheriff's  sale,  relates 
back  to  the  seizure  or  levy  of  the  property  sold;  and 
on  the  further  ground  that  otherwise  the  previous 
levy,  which  was  authorized  when  made,  might  become 
a  vain  and  purposeless  act.     But,  except  for  the  pur- 
pose of  justifying  the  detention  and  sale  of  the  property 

71  Sec  3  Minn.  223;  5  Hill,  230;  4  Bibb,  94;  3  Scam.  551;  14  Pet.  84; 
4  Wheat.  503;  37  Mo.  194;  and  35  Iowa,  288.  cited  above.  Also 
Mooney  y.  Maas.  22  Iowa,  380;  Reddick  v.  Cloud.  2  Gilm.  GTO;  Bel- 
linunll  V.  Duncan,  3  Gilm.  477;  Tillotson  v.  Doe.  5  Blackf.  5!)0; 
Butterfifld  v.  Walsb.  21  Iowa,  97,  89  Am.  Dec.  557:  Stein  v.  Cliam- 
l)less,  IS  Iowa,  474,  87  A'm.  Dec.  411:  Irvin  v.-  Ticket,  3  Bibb,  34:^; 
Lowry  v.  Koed.  89  Ind.  442;  Rose  v.  In.irram.  98  Ind.  270;  Knox  v. 
Randall,  24  Minn.  479;  .Johnson  v.  Bemis.  7  Xeb.  224;  Southern  C. 
L.  Co.  V.  Ocean  Beach  H.  Co.,  94  Cal.  217,  28  Am.  St.  Rep.  115;  OIlis 
V.  Kirkpatrick,  2  Idaho.  97(>;  Sjioncer  v.  Ilaug,  45  Minn.  231. 

7'J  Lehr  v.  Rotrers.  3  Sniedes  A:  M.  4(!S;  Kane  v.  Preston.  24  Miss. 
133;  Dale  v.  Medcalf,  9  Pa.  St.  Kis;  Cash  v.  Tozer,  1  Watts  &  S.  519. 


§  106  DUTIES  AND  LIABILITIES  OF  OFFICERS.  39a 

preyiouslj  levied  upon,  an  execution  after  the  return 
day  tliereof  is  functus  officio.''^  An  officer  attempting 
to  furtlier  execute  it  is  entirely  without  justification, 
and  is  liable  for  his  acts  precisely  as  he  would  be  if  he 
had  no  writ  in  his  possession.  A  purchaser  at  an  exe- 
cution sale,  where  the  levy  and  sale  were  made  after 
the  return  day  of  the  writ,  acquires  no  title  whatever.''^ 
The  fact  that  a  writ  has  been  levied  upon  property 
which  the  sheriff  has  the  right  to  sell  after  the  return 
day  does  not  justify  the  making  of  any  fui-ther  levy 
after  that  time.''^  If  no  return  day  is  named  in  the  writ^ 
it  must  be  regarded  as  returnable  on  the  latest  day 
which  might  have  been  lawfully  designated  by  the  of- 
ficer issuing  the  writ,  and  a  levy  and  sale  made  after 
that  date  are  invalid.  "Whether  any  day  or  a  proper 
day  be  specified  or  not,  the  writ  in  no  case  can  be  kept 
alive  in  the  hands  of  an  officer  after  the  latest  day  at 
which  the  statute  requires  it  to  be  returned.  The  writ 
in  this  case,  whatever  time  was  expressed  on  its  face  a» 
the  return  day,  or  whether  any  time  was  so  expressed, 
could  not  be  levied  after  the  lapse  of  sixty  days  from 

T3  Cook  V.  AVood,  1  Harr.  (N.  J.)  254;  Hathaway  v.  Howell.  9  Alb. 
L.  J.  261,  54  N.  Y.  97;  Finn  v.  Commonwealth,  6  Pa.  St.  4U0;  Lo- 
fland  V.  Jefferson,  4  Harr.  (Del.)  .30.3;  Castleman  v.  Griffith,  Ky.  Pr. 
Deeis.  .348;  Carnahan  v.  People,  2  111.  App.  G30;  AVaklrop  v.  Fried- 
man, 90  Ala.  1.57,  24  Am.  St.  Rep.  77.5;  Eand  v.  Cutler.  155  Mass. 
451;  Evans  v.  Caiman,  92  Mich.  427,  .31  Am.  St.  Rep.  606;  Faull  v. 
Cook,  19  Or.  455,  20  Am.  St.  Rep.  830;  Buckley  v.  Mason,  52  Neb. 

639. 

74  Bank  of  Missouri  v.  Bray,  37  Mo.  194;  .Jefferson  v.  Curry.  71 
Mo.  85;  Wack  v.  Stevenson,  54  Mo.  481;  McDonald  v.  Gronefekl, 
45  Mo.  28;  Kcmble  v.  Harris,  36  N.  J.  L.  526;  McElwee  v.  Sutton, 
2  Bail.  361;  Love  v.  Gates,  2  Ired.  14;  Gaines  v.  Clark,  1  Bibb,  6(i9; 
Lehr  v.  Doe,  3  Smedes  &  M.  468;  Ross  v.  McCartan,  1  Brev.  ."07; 
Vail  v.  Lewis,  4  .lohns.  450,  4  Am.  Dec.  ,300;  Collins  v.  Wai^goner. 
Breese,  ISO;  Ranseley  v.  Goodwin,  IS  N.  H.  217;  Frellsen  v.  An- 
derson, 14  La.  Ann.  05;  West  v.  Sli()ckl(>y,  4  Harr.  (D;l.)  2S7. 

75  McDonald  v.  Groenfeld,  45  Mo.  28. 


301  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  10(; 

the  29tli  of  January,  1878,  aiid  the  levy,  which  was 
in  fact  made  on  April  10,  1878,  beyond  the  latest  pos- 
sible return  day,  was  absolutely  void/' ''"  An  arrest  un- 
der a  ca.  sa.  after  the  return  day  is  a  'trespass,'''''  and 
so  is  a  levy  under  a  fieri  facias."'^*  An  officer  receiv- 
ing monej^  after  the  return  day,  unless  in  satisfaction 
of  a  writ  levied  before  that  time,  does  not  act  in  his 
official  capacity,  but  merely  as  the  agent  of  the  defend- 
ant. Such  payment  does  not  make  the  officer's  sure- 
ties responsible,  nor  does  it  satisfy  the  judgment 
unless  accepted  by  plaintiff.'^^  An  execution  continues 
in  force  to  and  including  the  return  day  thereof;  and 
a  valid  levy  may  be  made  on  the  return  day  as  well  as 
on  any  other.**"  When,  under  the  law,  tlie  writ  is  re- 
turnable to  court,  a  question  has  arisen  whether  it 
continues  in  force  after  the  adjournment  of  the  court 
on  the  return  day.  In  England,***  it  was  held  that,  at 
the  adjournment  of  the  court,  the  writ  became  functus 
officio;  and  in  America  some  decisions  have  been  made 
on  authority  of  this  English  case,  and  therefore  in  har- 
mony with  it;**^  but  the  English  case  was  long  since 
overruled  in  that  country,  and  the  law  declared  to  be 

7«  Walflrop  V.  Friedman,  00  Ala.  157,  24  Am.  St.  Rep.  775. 

"  Stoyel  V.  Lawrence,  3  Day,  1. 

78  Vail  V.  Lewis.  4  .Tohns.  450,  4  Am.  Dec.  300. 

70  Fanners'  Bank  v.  Reid,  3  Ala.  299;  Rndd  v.  .Tohnson.  5  Lltt. 
19;  Fdwiirds  v.  Insraliam.  31  Miss.  272;  Haralson  v.  Holeombe, 
10  Sniodes  &  M.  5N1;  Barton  v.  Locldiart,  2  Stew.  &  P.  109;  Bobo 
V.  Thompson,  3  Stew.  &  P.  385;  Harris  v.  Ellis,  30  Tex.  4,  94  Am. 
Dec.  29G;  Planters'  Bank  v.  Scott,  5  How.  (Miss.)  24G;  GrandstaflP 
V.  Ridccley.  30  f4ratt.  1;  Chipman  v.  Fambro,  IG  Ark.  291;  Wyer 
V.  Andrews,  13  Me,  16S,  29  Am.  Deo.  497. 

so  Woll<>y  V.  Mosely.  Cro.  Eliz.  7G1;  Ilarvy  v.  Broad.  Salk.  02G; 
Gaines  v.  Clark.  1  Bibb.  GOO;  Valentine  v.  Cooley.  1  Ilinniili.  38; 
Ijowry  V.  Reid,  89  Tnd.  442;  Stinv^cs'  Ai^peal.  8G  Pa.  St.  413. 

"1  Perkins  v.  Woolaston.   G   Mod.   3.30;   Salk.  321. 

«2  Prcscott  V.  Wright,  6  Mass.  20;  Blaisdell  v.  Sheafe,  5  N.  H.  201. 


§  107  DUTIES  AND  LIABILITIES  OF  OFFICERS.  392 

that  the  writ  may  be  executed  at  any  time  during  the 
return  day.**^  A  levari  facias  de  bonis  ecclesiasticis 
differs  from  other  writs  of  execution  in  the  time  it  may 
be  enforced.  It  is  a  continuing  writ.  A  levy  may  be 
made  under  it  from  time  to  time  after  it  is  returnable, 
until  satisfaction  is  produced.  A  rule  may  be  had 
against  the  bishop  from  time  to  time,  to  know  what  he 
has  levied.  If,  however,  the  writ  is  actually  returned, 
the  bishop's  authority  to  act  is  thereby  terminated.** 
If  an  officer  returns  a  writ,  though  before  the  return 
day  named  therein  or  implied  by  law,  it  becomes 
functus  officio,  and  cannot  be  given  new  life  by  his 
repossessing  himself  of  it  and  proceeding  to  act  un- 
der it,  though  such  action  takes  phice  before  the  origi- 
nal return  day.  It  is,  for  the  purpose  of  authorizing 
further  additional  action,  without  life  or  effect,  and 
any  proceeding  taken  under  it  is  a  trespass,  unless  it 
is  of  a  character  which  the  officer  might  properly  per- 
form after  the  return  day.*® 

§  107.  Diligence  with  Which  the  Officer  should  Pro- 
ceed.— Having  satisfied  himself  that  it  is  his  duty  to 
execute  the  writ,  the  officer  may  next  inquire  when 
and  how  he  must  proceed.  The  writ  will  expire  on  its 
return  day,  and  ought  certain!}^  to  be  executed  by  that 
time,  if  possible.  But  the  officer  has  no  right  to  delay 
its  execution  for  any  period  of  time.  If  the  plaintiff 
points  out  property  belonging  to  the  defendant,  and 
requests  its  seizure,  the  sheriff  should  comply,  though 
the  writ  has  just  come  to  his  hands.    If  he  refuses  to 

83  Maud  V.  Barnard,  2  Burr.  S12. 

84  Marsh  v.  Fawcett,  2  H.  Black.  582,  3  Wms.  Abr.  46S. 

85  PhiUips  V.  Dana,  .3  Scam.  .551;  Carnahan  v.  People,  2  111.  App. 
G30;  Pvowley  v.  Nichols,  14  R.  I.  14;  Paiue  v.  Haskius,  3  Lea,  2M. 


303  DUTIES  AND  LIABILITIES  OF  OEEICEIIS.  §  107 

levy,  au  actiou  may  bo  sustaiued  aj^aiust  liiin  for  suck 
refusal,  without  waiting  for  the  rctuiii  of  the  writ,  pro- 
vided that  the  plaintiff  can  show  that  he  lias  been  in- 
jured by  the  delay.^**  The  degree  of  diligence  which  an 
officer  must  disi)lay  in  the  execution  of  a  writ  cannot 
be  stated  with  desirable  precision:  1.  Because  the 
courts  are  not  exactly  agreed  in  the  rules  which  they 
have  announced  on  the  subject;  and  2.  Because  of  the 
inherent  and  unavoidable  difficulty  of  finding  and  ex- 
pressing any  general  princii)le  which  is  fit  to  govern 
a  class  of  cases,  each  member  of  which  is  n«^cessar- 
ily  affected  by  peculiar  circumstances  tending  to  dis- 
tinguish it  from  every  other  member.**'^  In  Lindsay's 
Executors  v.  Armfield,^*  it  is  said  that  "the  law  de- 
<'lares  it  to  be  the  duty  of  the  sheriff  to  execute  all 
process  which  comes  to  his  hands  with  the  utmost  expe- 
dition, or  as  soon  after  it  comes  to  his  hands  as  the 
nature  of  the  case  will  admit."  In  another  case  the 
court  said:  "A  sherifi:  is  bound  to  use  all  reasonable  en- 
deavors to  execute  process";  and  further,  that  he 
should  make  all  needful  inquiries,  and  not  rely  "on 
vague  information  obtained  from  casual  inquiries."  ^^ 
An  officer,  having  in  his  hands  an  execution,  was  in- 
formed by  the  defendant  that  an  appeal  had  been  taken 
and  a  bond  to  stay  execution  filed,  and  hence  neg- 
lected to  make  a  levy  until  the  opportunity  to  do  so 
liad  passed.  lie  was  held  to  have  been  guilty  of  such 
want  of  diligence  as  rendered  him  liable  to  the  plain- 
tiff in  the  writ.  The  court,  after  quoting  with  ap])ar- 
ont  approval  an  instruction  from  an  early  Illinois  de- 

8«  Shannon   v.   Commonwealth.   8   Sorg.   &  R.   444;    Farqubar    v. 
Dallas.  20  Tex.  200. 

8T  Whitsott  V.  Slater.  23  Ala.  G20. 

«^r',  Hawks.  5r.,1.   14  Am.  Dec.  OOn. 

«»  Ilinman  v.  Borden,  10  Wend.  3GS.  2."  Ain.  Dec.  ".GS. 


§  107  DUTIES  AND  LIABILITIES  OF  OFFICERS.  394 

cision,'"*  *  said:  "The  purport  of  this  instruction  is  sim- 
ply to  require  the  sheriff  to  make  reasonable  exertions 
to  levy  upon  the  property  of  the  defendant  in  his 
county.  This,  at  least,  every  sheriff  and  constable  is 
bound  to  do,  and  if  he  fails  to  exercise  due  diligence 
in  the  discharge  of  his  duty  in  that  respect,  he  is  re- 
sponsible for  whatever  loss  or  detriment  the  person 
who  commits  an  execution  to  his  hands  may  sustain 
in  consequence  of  such  failure."^**  An  attorney  de- 
livered an  execution  to  a  sheriff  on  behalf  of  his  client, 
informing  him  where  the  goods  were  on  which  he 
wished  a  levy  to  be  made,  and  that  it  was  impor- 
tant that  the  levy  should  be  made  at  once.  This  the 
officer  promised  to  do.  lie,  however,  put  the  writ  in 
the  hands  of  one  of  his  deputies,  who,  not  being  in- 
formed of  the  change  which  had  been  made  in  the  time 
for  the  departure  of  trains,  was  unable  promptly  to 
reach  the  place  where  the  property  was,  and,  before  a 
levy  could  be  made,  the  defendant  executed  an  assign- 
ment for  the  benefit  of  creditors,  and  the  plaintiff  lost 
the  opportunity  to  procure  the  satisfaction  of  his  writ. 
In  determining  that  the  trial  court  correctly  held  that 
the  officer  had  been  guilty  of  such  want  of  diligence 
as  made  him  answerable  for  the  damages  sustained, 
the  court  said:  "The  purpose  of  a  writ  of  execution  is, 
to  authorize  the  officer  to  whom  it  is,  directed  and  de- 
livered, to  seize  and  hold  the  property  of  the  debtor 
for  the  satisfaction  of  the  amount  ordered  to  be  made 
by  such  writ.  And,  in  the  absence  of  instructions,  it 
is  his  duty  to  proceed  with  reasonable  celerity  and 
promptness  to  execute  it  in  accordance  with  its  man- 

«8a  Dtinlap  v.  Bprry,  4  Scam.  331. 

»o  Steele  v.  Crabtree,  40  Neb.  428;  Gilbert  v.  Gallup,  7G  111.  App. 
230. 


395  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  107 

dates.  If,  at  the  time  of  the  delivery  of  the  Avrit,  the 
plaintiff,  being-  apprehensive  of  the  loss  of  his  debt, 
unless  it  be  immediately  levied,  directs  tlie  oftlcei-  to 
proceed  forthwith,  or  points  out  i)roperty  belonging 
to  the  defendants  and  requests  its  seizure,  it  is  his  duty 
to  make  every  i)ossible  effort  to  comply  with  such  di- 
rections or  instructions  consistent  with  a  just  regard 
for  other  duties  which  may  devolve  upon  him,  or  he  will 
be  answerable  for  the  consequences,  if  any  injury  or 
loss  result  to  the  plaintiff  by  reason  of  any  neglect  or 
omission  of  such  duty."  "^ 

While  it  is  doubtless  prudent  for  the  plaintiff  to 
point  out  to  the  officer  property  subject  to  levy,  his  not 
doing  so  does  not  exonerate  the  officer  from  making 
a  levy  if  practicable.  It  is  his  duty  to  make  diligent 
search  and  inquiry  for  property,  and,  failing  to  do  so, 
he  is  answerable  for  any  loss  which  may  be  incurred.^^ 
Nor  must  he  content  himself  with  mere  formal  inquiry. 
If  sued  for  his  failure  to  realize  the  judgment  debt,  he 
cannot  successfully  defend  by  proving  the  existence  of 
a  general  report  that  the  defendant  was  insolvent,®* 
nor  by  showing  that  he  was  informed  by  the  debtor 
and  his  wife  that  the  property  in  their  possession  be- 
longed to  her.***  So  it  was  held  that  a  marshal  was 
bound  to  serve  a  subpoena  in  chancery  "as  soon  as  he 
reasonably  could."  "^  "The  sheriff's  liability  rests  on 
his  breach  of  official  duty.  As  he  is  bound  to  perform 
his  duty,  so  he  is  responsible  to  every  one  who  may 

•1  Haliersham  v.  Sears,  11  Or.  433;  Guitcrman  v.  Sbarvry.  46 
Minn.  1S3,  24  Am.  St.  Rep.  1^3. 

82  Greon  v.  LoweU.  3  Grcenl.  373:  Harsrave  v.  Penrod,  Bit'ese, 
401;  Albany  City  Bank  v.  Dorr.  Walk.  Cb.  318. 

o"*  Parks  v.  Alexander,  7  Ired.  412. 

0+  Robertson  v.  Beavers.  3  Port.  .385. 

65  Koiinedy  v.  Brent,  0  rrandi.  1S7.  A  dtlay  of  eifflit  days  has 
been  determined  to  be  negligent.     Hearn  v.  Parker.  7  Jones.  150. 


§  107  DUTIES  AND  LIABILITIES  OF  OFFICERS.  396 

be  injured  bj  liis  failure  to  discliarge  it.  lu  respect  to 
the  exe^eution  of  process,  these  official  duties  are  well 
defined  by  law."  The  law  is  reasonable  in  this,  as  in  all 
other  things.  It  holds  public  officers  to  a  strict  per- 
formance of  their  respective  duties.  It  tolerates  no 
wanton  disregard  of  these  duties.  It  sanctions  no  neg- 
ligence; but  it  requires  no  impossibilities,  and  imposes 
no  unconscionable  exactions.  When  process  of  attach- 
ment or  execution  comes  to  the  hands  of  the  sheriff,  he 
must  obey  the  exigency  of  the  writ.  He  must  in  such 
cases  execute  the  writ  with  all  reasonable  celerity. 
Whenever  he  can  make  the  money  on  execution,  or  se- 
cure the  debt  on  attachment,  he  must  do  it.  But  he  is 
not  held  to  the  duty  of  starting,  bn  the  instant  after 
receiving  a  writ,  to  execute  it,  without  regard  to  any- 
thing else  than  its  instant  execution.  Reasonable  dili- 
gence is  all  that  is  required  of  him  in  such  instances. 
But  this  reasonable  diligence  depends  upon  the  parti- 
cular facts  in  connection  with  the  duty.  If,  for  exam- 
ple, a  sheriff  has  execution  against  A,  and  he  has  no 
special  instructions  to  execute  it  at  once,  and  there  is 
no  apparent  necessity  for  its  immediate  execution,  it 
would  not  be  contended  that  he  was  under  the  same 
obligations  to  execute  it  instantaneously  as  if  he  were 
so  instructed,  and  there  were  circumstances  of  ur- 
gency." ****  In  order  to  sustain  an  action  against  an 
officer  for  not  levying  a  writ,  "it  is  necessary  for  the 
plaintiff  to  establish  by  proof  that  an  execution  in  his 
favor  was  received  by  the  sheriff'  in  time  to  make  the 
money;  and  that  while  in  his  hands  he  was  required  to 
make  a  levy  by  virtue  of  it,  at  a  time  wlien  it  was  in 

96  Whitney  v.  P.utteufield,  13  Cal.  .S38.  73  Am.  Dec.  584;  State  ▼. 
Leland,  82  Mo.  2(;.5;  State  v.  Finn,  87  :\ro.  .114.  See.  also,  .ramler  v. 
Vandever,  3  Harr.  (Del).  29;  Roe  v.  Gemmill,  1  Iloust.  9. 


897  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  107 

his  power  to  do  so;  and,  further,  that  he  failed  to  make 
such  levy."  "^ 

The  mere  failure  to  make  a  levy,  though  property 
could  have  been  found  subject  to  such  levy,  will  not 
invariably  make  the  othcer  liable.  The  court  will  con- 
sider what  were  his  other  duties  at  the  time,  for  his 
diligence  must  be  viewed  in  the  light  of  all  attendant 
circumstances.  If  he  has  a  large  number  of  prior  writs 
in  his  hands,  and  is  also  pressed  by  numerous  other 
official  duties,  a  delay  of  fourteen  days  may  not  estab- 
lish want  of  diligence.****  In  some  of  the  recent  cases  it 
has  been  held  proper  to  instruct  the  jury  that  the 
sheriff  was  exonerated  if  he  exercised  "skill  and  dili- 
gence such  as  a  reasonable  man  would  exercise  in  the 
performance  of  like  duties  under  the  same  circum- 
stances." ^  This  subject  received  very  careful  atten- 
tion in  the  supreme  court  of  Wisconsin  in  consider- 
ing two  appeals  taken  in  the  case  of  Elmore  v.  Hill.*^ 
The  general  rule  was  there  formulated  as  follows: 
"The  result  of  the  adjudications  on  the  subject  seems 
to  be  that,  on  receipt  of  the  execution,  in  the  absence 
of  specific  instructions,  the  officer  must  proceed,  with 
reasonable  celerity,  to  seize  the  property  of  the  debtor, 
if  he  knows,  or  by  reasonable  effort  can  ascertain, 
that  such  debtor  has  property  in  his  bailiwick  liable 
to  seizure  or  execution.  The  officer  must  do  this  as 
soon  after  the  process  comes  to  his  hands  as  the  na- 

87  Lyendecker  v.  Martin,  38  Tex.  289.  Failing  to  levy  an  execu- 
tion, when  in  his  power  to  do  so,  makes  the  officer  responsible. 
O'Bannon  v.  Saunders,  24  Gratt.  138, 

68  state  V.  Blanch,  70  Ind.  204. 

09  Crosby  v.  Ilungerford.  59  Iowa,  712;  State  v.  Leland,  82  Mo. 
260. 

100  4G  Wis.  CIS  and  51  Wis.  3G5. 


§  107  DUTIES  AND  LIABILITIES  OF  OFFICERS.  398 

ture  of  the  case  will  admit  If  he  fails  to  execute  the 
process  within  an  apparently  reasonable  time,  the 
burden  is  on  him  to  show,  by  averment  and  proof, 
that  his  delay  was  not  in  fact  unreasonable.  Failing 
this,  he  must  respond  in  damages  to  the  party  injured 
by  his  negligence."  In  this  case  it  appeared  that  in 
the  afternoon  of  April  25,  1876,  the  execution  was  de- 
livered to  the  sheriff.  It  was  against  a  threshing- 
machine  company  then  doing  business  within  a  mile 
and  a  half  of  the  sheriff's  office.  In  the  evening  of  the 
same  day  the  under-sheriff  called  on  the  secretary  of 
the  company,  advised  him  of  the  execution,  and  asked 
him  whether  he  was  ready  to  satisfy  it.  The  secretary 
replied  that  the  board  would  have  a  meeting  the  next 
morning  and  make  some  arrangement  about  paying  the 
debt.  Nothing  further  was  done  by  the  sheriff.  On 
the  29th  of  the  same  month  the  company  made  an  as- 
signment. It  being  admitted  that  the  defendant  in  exe- 
cution had  property  known  to  the  sheriff  upon  which 
a  levy  could  have  been  made,  the  court  had  no  hesita- 
tion in  declaring  as  a  matter  of  law  that  these  facts 
constituted  want  of  diligence  on  the  part  of  that  officer, 
and  rendered  him  answerable  to  the  plaintiff,  even  as- 
suming that  no  directions  were  given  to  proceed  at 
once.  To  the  sheriff's  plea  that  he  was  required  to  be 
in  attendance  upon  the  circuit  court  at  that  time,  the 
court  responded  that  he  was  authorized  by  law  to  ap- 
point as  many  deputies  as  he  saw  fit,  that  the  object  of 
this  authorization  was  to  secure  the  speedy  service  of 
process;  and  that  if  his  constant  personal  attendance 
upon  the  court  was  really  necessary,  then  he  ought  to 
have  sent  a  deputy  to  levy  the  execution. 

Where  the  officer  has  failed  to  exercise  the  degree 
of  diligence  due  from  him,  and  the  plaintiff  in  the  writ 


399  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  107 

has  thereby  suffered,  and  the  officer  seeks  to  excuse 
his  nonaction,  he  must  generally  assume  the  burden  of 
proof,  and  satisfy  the  court  that  the  excuse  he  now 
presents  is  not  an  after-thought  to  escape  the  conse- 
quences of  his  negligence.  Doubtless,  if  the  oCQcer  is 
entitled  to  fees  in  advance,  either  for  himself  or  to  be 
paid  another  officer,  and  demands  such  fees,  and  they 
are  not  paid,  this  is  a  sufficient  excuse  for  not  pro- 
ceeding with  the  writ.  Where,  however,  fees  are  to 
be  paid  to  another  officer,  it  is  the  duty  of  the  sheriff 
to  proceed  as  far  as  he  can,  and  he  cannot  relieve  him- 
self from  liability  by  alleging  that  the  fees  to  be  paid 
such  other  officer  were  not  advanced,  there  being  no 
demand  therefor.  Thus,  where  the  sheriff  sought  to 
excuse  himself  for  not  levying  upon  certain  real  prop- 
erty on 'the  ground  that  he  had  not  been  furnished 
with  funds  with  which  to  pay  the  recorder's  fees,  the 
court  said:  "The  excuse  for  this  neglect  by  the  sheriff 
is  that  the  plaintiff  in  the  execution  had  not  fur- 
nished any  funds  to  pay  the  fees  for  filing  and  record- 
ing the  cer-tificate  of  levy.  This  excuse  is  wholly  in- 
sufficient to  relieve  the  sheriff'  from  his  responsibility 
in  failing  to  levy,  and  making  and  presenting  his  certi- 
ficate thereof  to  the  clerk  to  be  filed.  It  was  his  duty 
to  make  a  levy  on  the  land,  and  present  the  certifi- 
cate to  be  filed  of  record  with  the  clerk  of  the  circuit 
court,  and  if  the  clerk  failed  to  record  it,  by  reason 
that  his  fees  were  not  paid,  the  sheriff  had  discharged 
his  duty  by  presenting  the  certificate  for  record.  The 
sheriff  should  have  levied  on  the  land  at  all  hazards, 
and  have  made  a  certificate  thereof,  which  if,  on  being 
presented  to  the  clerk,  he  refused  to  record,  the  sher- 
iff would  be  exonerated.  He  should  have  presented 
the  certificate  of  levy  to  the  clerk,  for  the  clerk  might, 


§  107  DUTIES  AND  LIABILITIES  OF  OFFICERS.  40O 

for  aught  the  sheritt'  could  know,  have  had  funds  of 
the  plaintiff  in  his  hands  to  discharge  the  costs  of  til- 
ing and  recording.  There  appears  to  be  no  excuse  for 
failing  to  levy  and  to  present  the  certificate  of  levy* 
lie  did  none  of  the  acts  required  of  him  by  the  statute, 
and  he  must  suffer  the  consequences  of  his  neglect/'  ^^^ 
If  an  officer  receives  a  writ  for  service,  but  makes 
no  demand  for  indemnity,  he  cannot  excuse  himself  for 
not  levying  on  the  ground  that  he  received  informa- 
tion which  led  him  to  believe  it  to  be  unsafe  for  him 
to  proceed.  Therefore,  if  he  fails  to  levy  upon  prop- 
erty on  the  ground  that  it  is  subject  to  a  mortgage,  he 
is  answerable  if  it  is  proved  that  such  mortgage  was 
fraudulent,  and  that  the  property  was,  notwithstand- 
ing, subject  to  the  writ.*^^  An  officer  cannot  excuse 
himself  for  not  levying  a  writ  on  the  ground  that  he 
was  ill  and  unable  to  do  so.  If  he  is  a  sheriff,  it  is 
his  duty  to  provide  deputies  who  can  act  for  him,  aud^ 
if  a  constable,  to  turn  the  writ  over  to  some  other  of- 
ficer by  whom  it  can  be  executed.*^'*  An  excuse  of- 
fered for  not  levying  a  writ,  or  for  not  proceeding  with 
its  further  execution  after  a  levy,  must  be  legally  suffi- 
cient. Hence,  a  sheriff  cannot  escape  liability  by  show- 
ing that,  after  levying  upon  the  property,  it  was  taken 
by  a  United  States  marshal  claiming  to  be  entitled  to 
it  by  virtue  of  certain  bankruptcy  proceedings,  if  those 
proceedings  did  not  justify  the  surrender  of  the  prop- 
orty.*"'*  Nor  can  a  sheriff  escape  liability  on  the 
ground  that  permission  to  make  the  levy  was  refused 
by  an  officer  who  assumed  to  have  authority  over  such 

101  Poople  V.  Palmor,  4G  111.  403. 

102  .Tewett  v  Siindback,  5  S.  D.  11. 

103  FrondonsTPin  v.  MeXier,  SI  111.  208. 

104  Ausouia  B.  &  C.  Co.  v.  Babbitt,  74  N.  Y,  395. 


401  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  lOS 

prop<^rty,  when  such  authority  did  not  exist,  and  also 
on  the  ground  that  an  attorney  advised  such  sheriff 
that  he  had  no  right  to  proceed,  such  advice  being  er- 
roneous.***^ 

§  108.  Who  may  Control  the  Writ.— The  inquiry  how 
the  writ  is  to  be  executed  cannot  be  answered  in 
detail  in  this  chapter.  The  best  general  answer  to  this 
inquiry  is  that  given  by  Bacon  in  his  Abridgement, 
namely,  "that  there  cannot  be  a  surer  rule  to  go  by 
than  a  strict  observance  of  what  is  enjoined  by  the 
writ."  *'**^  The  writ  directs  the  money  to  be  made  out 
of  the  personal  property  of  the  defendant.  The  first 
inquiry,  therefore,  will  be  with  a  view  of  ascertaining 
whether  the  defendant  has  any  such  property  subject 
to  execution;  if  so,  the  next  inquiry  is,  How  can  a 
valid  levy  be  made  on  such  property?  So,  if  the  de- 
fendant has  no  personal  property  subject  to  execution, 
the  oHIcer  should  inquire  for  real  estate,  and,  if  any  be 
found,  should  ascertain  whether  it  be  subject  to  exe- 
cution, and,  if  so,  should  })roceed  to  levy  thereon.  And 
whether  the  levy  be  upon  real  or  personal  estate,  many 
inquiries  must  be  made  to  ascertain  hoAv  the  levy  is  to 
be  made  productive  of  satisfaction.  The  various  steps 
in  the  enforcement  of  the  writ,  and  the  inquiries  neces- 
sarily preceding  these  steps,  wall  be  considered  in  sub- 
sequent chapters.  One  inquiry  will  be  answered  here, 
— who  is  entitled  to  control  the  writ.  The  officer 
should  always  bear  in  mind  that  the  writ  is  intended 
for  the  benefit  of  the  plaintiff,  who  alone  is  interested 
in  its  enforcement.  ^**'    The  interests  and  wishes  of  the 

105  Stiff  T.  McLaiishlin,  10  Mont.  300. 
306  Bao.  Abr.,  tit.  SluTiff,   N.   1. 

107  Reddick  v.  Cloud's  Adin'is,   7   111.   GTO;  Morgan   v.  reople,  59 
111.  r.8. 

Vol.  1.-^6 


§  108  DUTIES  AND  LIABILITIES  OF  OFFICERS.  402 

plaintiff  should  at  all  times  be  respected.  He  has  no 
right  to  insist  upon  a  fraudulent  nor  oi^pressive  use  of 
the  writ;  ^"**  nor  in  any  resj^ect  to  compel  the  officer  to 
exercise  a  severity  which  would  seem  to  be  actuated 
by  malice  toward  the  defendant  as  much  as  by  the 
desire  to  obtain  satisfaction  of  his  judgment.  But  all 
directions  of  the  plaintiff  not  savoring  of  fraud,  nor  un- 
due rigor  and  oppression,  must  be  obeyed,  or  the  officer 
will  be  held  liable  for  injurious  consequences  flowing 
from  his  disobedience.*^''*  Thus,  if  upon  the  day  when 
property  is  advertised  for  sale,  the  sheriff  insists  upon 
a  postponment  in  defiance  of  the  instructions  of  the 
plaintiff,  the  officer  is  answerable  for  damages  result- 
ing from  such  j)ostponement,  and  these  are  presumed, 
in  the  absence  of  evidence  to  the  contrary,  to  be  the 
amount  of  the  judgment  and  costs,  and  the  burden 
rests  upon  the  officer  to  show  any  facts  in  mitigation.**** 
If  the  directions  of  the  plaintiff  that  the  sale  be  post- 
poned are  not  obeyed,  and  a  sale  of  the  property  re- 
sults in  a  grossly  inadequate  price,  if  the  defendant  is 
insolvent,  the  plaintiff  is  also  entitled  to  relief  in  equity 
by  a  decree  cancelling  the  sale  and  authorizing  far- 
ther execution  upon  the  judgment.***  The  plaintiff 
may  authorize  the  officer  to  take  a  course  outside  the 
ordinary  method  of  collection,  by  receiving  notes,  in 

108  McDonald  v.  Neilson,  2  Cow.  1.39,  14  Am.  Dec.  431. 

109  Tucker  v.  Bradley,  1.5  Conn.  46;  Rogers  v.  McDearmid.  7  N. 
II.  50G;  Richardson  v.  Bnrtlej%  2  B.  Mon.  328;  Tattou  v.  Hamner, 
28  Ala.  018;  Toston  v.  Southern,  7  B.  Mon.  289;  Walworth  v.  Reads- 
boro,  24  Vt.  2o2;  Shryock  v.  .Tones,  22  Pn.  St.  303;  Isler  v.  Colgrnve, 
7.5  N.  C.  334;  State  v.  Pilsbury,  35  La.  Ann.  408;  Scheubert  v.  Horrel. 
50  111.  App.  597;  Wells  v.  Bower,  12G  Ind.  115,  22  Am.  St.  Rep.  570; 
Lawyers  C.  Co.  v.  Bennett,  34  Fla.  3G2. 

110  Gilbert  v.  Watts-De  Golyer  Co.,  (!G  111.  App.  G25. 

111  Lawyers'  C.  P.  Co.  v.  Bennett,  34  Fla.  302. 


403  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  lOS 

payment  or  giving  credit  at  the  sale;***  or  be  may 
order  the  ollicer  to  suspend  the  writ,  either  tempo- 
rarily or  ijermanently;  ^'"^  and  the  latter  is  liable  for 
making  a  sale  after  the  plaintiff  has  directed  him  not 
to  do  so/**  The  plaintiff  may  have  assigned  the  judg- 
ment. If  so,  all  further  proceedings  are  necessarily 
for  the  benefit  of  the  assignee,  who  should  be  accorded 
the  same  right  of  control  to  which  the  plaintiff  was 
entitled  before  he  had  parted  with  his  interest  in  the 
judgment,**^  Other  persons  may  claim  to  have  rights 
in  the  execution  or  the  proceeds  thereof,  or  the  prop- 
erty to  be  affected  thereby.  The  sheriff",  where  there 
is  any  doubt  upon  the  subject,  should  obey  only  the 
directions  of  the  plaintiff:  and  not  undertake  to  de- 
cide the  rights  of  conflicting  claimants.****  The  fact 
that  officers  are  interested  in  fees  which  may  be  real- 
ized by  the  enforcement  of  an  execution  does  not  enti- 
tle them  to  control  it;  **'  nor,  as  a  general  rule,  unless 
some  right  is  given  them  by  statute,  have  other  credi- 
tors or  the  defendant  an^-  authority  to  give  directions 
respecting  the  execution  of  the  writ  against  him.*** 

An  officer,  it  is  scarcely  needless  to  say,  is  neither 
required  nor  justified  in  obeying  directions  of  the 
plaintiff,  when,  to  do  so,  would  be  to  attain  a  purpose 
forbidden  by  law,**^  or  not  authorized  by  the  com- 
mands of  the  writ.*-*    Where  several  defendants  were 

112  Armstrong  v.  Garrow,  G  Cow.  40.");  Gorham  v.  Gale,  G  Cow. 
467,  note  a;  Atkin  v.  Mooney,  Thil.  L.  31. 

113  Jackson  v.  Anderson,  4  Wend.  474. 
11*  Morgan  v.  People,  59  111.  60. 

115  Bressler  v.  Beach,  21  111.  App.  423;  Owens  v.  Clark,  78  Tex. 
547;  Clark  v.  Hogenian,  13  W.  Va.  718. 
118  Dauglierty  v.   Moon,  59  Tex.  397. 
11"  Fowler  v.  Pearce,  7  Ark.  28,  44  Am.  Dec.  52G. 
118  Yost  V.  Smith.  105  Pa.  St.  G28.  51  Am.  Kep.  219. 
iiaCoville  v.  Bentley.  7G  Mich.  248.  15  Am.  St.  Rep.  312. 
120  Swan  V.  Gilbert,  G7  111.  App.  23G.    . 


§  lOS  DUTIES  AND  LIABILITIES  OF  OFFICERS.  404 

equally  liable  for  a  debt,  it  Avas  said  that  the  plaintiff 
had  uo  right  to  instruct  the  sheriff  to  collect  it  out  of 
the  property  of  one  of  them  only,  or  to  proceed  in  any 
way  which  might  necessarily  prejudice  the  right  of  one 
of  them  to  compel  another  to  contribute  his  just  share. 
"The  plaintiff  may  properly  assist  the  sheriff  in  the 
collection  of  the  debt  due  him  by  suggestions  as  to 
where  property  may  be  found,  as  to  which  of  several 
defendants  has  personal  propeity  that  may  be  reached 
by  a  levy,  or  in  any  other  proper  and  pertinent  man- 
ner. But  a  plaintiff  ought  not  to  settle  other  contro- 
versies than  his  own  by  an  attempt  to  intervene  be- 
tween defendants  and  deprive  them  of  the  right  to  con- 
tribution which  the  hiAV  gives  them.  His  position  is 
adverse  to  the  defendants,  and  any  of  them  whom  he 
compels  to  pay  more  than  his  share  of  the  joint  in- 
debtedness has  a  right  to  subrogation  or  contribution, 
which  the  plaintiff  cannot  take  away  and  which  he  has 
no  right  to  hinder  or  obstruct."  *-*  The  principle 
stated  in  this  quotation,  if  it  exist  at  all,  must  mani- 
festly be  restricted  to  those  cases  in  which  obedience 
to  the  instructions  of  the  plaintiff  must  result  in  de- 
stroying, or  substantially  impeding  or  impairing,  the 
right  of  one  of  the  defendants  to  contribution  in  the 
event  of  his  being  compelled  to  discharge  more  than  his 
share  of  a  joint  obligation.  As  we  understand  the  law, 
when  a  plaintiff"  has  recovered  judgment  against  two 
or  more  defendants,  each  of  them  may  be  regarded  as 
indebted  to  the  plaintiff  in  the  full  amount  of  the  judg- 
ment, and  he  may,  therefore,  properly  ])uisue  either  to 
the  extent  of  coercing  satisfaction  of  t  he  judginent.  In 
other  words,  he  is  under  no  ()bligati<m  to  investigate, 
for  the  purpose  of  determining  between   them,  what 

121  Poiiicioy  V.  .TiiiiiMta  \'all<>y  C.  Co..  IS:}  Ta.  St.  IT. 


405  DUTIES  AND  LIABILITIES  OF  OFFICERS.  §  103 

each  should  contribute,  aud  he  may,  therefore,  direct 
the  sherifl'  to  levy  the  writ  upou  the  property  of  one 
rather  than  u])on  that  of  the  other,  aud  it  is  the  duty 
of  the  sshcrin'  lo  obey  such  direction,  and  he  is  answer- 
able to  tile  i)!aiuliir  for  any  injury  resulting-  from  the 
failure  so  to  do.^-'  The  plaintiff's  attorney  has,  by 
virtue  of  his  general  employment  in  the  case,  power  to 
direct  an<l  control  the  execution,*""  though  he  cannot 
satisfy  the  writ  exc('i>l  upon  payment  to  him  of  the  full 
amount  thereof  in  money,*"*  unless  the  plaintiff  has 
given  him  special  authority  to  compromise  the  debt  or 
accept  satisfaction  in  something  not  a  legal  tender. 
The  burden  of  jn'oving  such  special  authority  is  upon 
the  party  claiming  under  it;  for  it  will  never  be  pre- 
sumed.*"' In  England  it  seems  that  the  retainer  of  the 
attorney  ceases  at  judgment;  *"*•  but  that  if  an  attorney 
is  retained  to  conduct  proceedings  under  execution,  he 
has  authority  to  make  a  compromise.*"''  The  author- 
ity of  the  plaintiff's  attorney  may  be  revoked  at  any 
time;  and.  after  knowledge  of  such  revocation,  the  oflfi- 

122  Root  V.  WacTier.  30  X.  Y.  9.  86  Am.  Dec.  348;  Godfrey  v.  Gib- 
bons, 22  Weud.  5159:  Starry  v  .Tolmson,  32  Ind.  440. 

123  Gorhani  v.  Gale,  7  Cow.  7;>1>.  IT  Am.  Dec.  549;  Walters  v. 
Sykes,  22  Wend.  568;  State  v.  Royd.  c:',  Ind.  428. 

124  Freeman  on  Judgments,  sec.  4(>3;  Wrisrht  v.  Daily.  26  Tex. 
7;'.0;  G.arthwaite  v.  Wentz,  19  La.  Ann.  196:  Lewis  v.  Gamage,  1 
riclv.  347;  Smock  v.  Dade.  5  Rand.  639.  16  Am.  Dec.  780;  McCarver 
V.  Nealey,  1  Iowa,  360;  Lewis  v.  Woodruff.  15  How.  Pr.  539:  Bene- 
dict V.  Smith,  10  Paisre.  126;  Beers  v.  Ilendricksou.  45  X.  Y.  66-5; 
.lacUson  v.  Bartlett.  8  Johns.  361:  Trumbull  v.  Nicholson.  27  111.  149; 
Wilkinson  v.  Hollo  way,  7  Lei.uii.  277;  Wakeman  v.  Jones,  1  Cart. 
517;  Chapman  v.  Cowles,  41  Ala.  103.  91  Am.  T)ec.  .508:  Jones  v. 
Ransom,  3  Ind.  327;  Abbe  v.  Rood,  (5  McLean,  107;  Jewett  v.  Wad- 
leish,  32  Me.  110;  Vail  v.  Conant.  15  Vt.  314. 

'■-•■>  Portis  V.  Ennis,  27  Tex.  574. 

126  Lovejrood  V.  White,  L.  R.  6  C.  P.  440;  Butler  v.  Knisht.  L.  R. 
2  Ex.  109;  36  L.  J.  Ex.  86:  15  Week  Rep.  407:  15  L.  T..  X.  S   621. 

12T  Butler  V.  Kniuht.  L.  R.  2  Ex.  109;  36  L.  J.  Ex.  86;  15  Week. 
Rep.  407;  15  L.  T.,  X.  S..  621. 


§  108  DUTIES  AND  LIABILITIES  OF  OFFICERS.  40& 

cer  is  not  justified  in  pursuing  the  instructions  of  the 
attorney.  An  assignment  of  the  judgment  also  oper- 
ates as  a  revocation  of  the  attorney's  authority.  If  the 
officer  has  notice  of  such  assignment,  and  that  the  as- 
signee has  employed  another  attorney,  he  must  recog- 
nize the  changed  condition  of  affairs,  and  obey  the 
instructions  of  the  latter.*-® 

128  Robinson  v.  Brennan,  90  N.  Y.  203. 


407     PERSONAL  PROFEKXY  SUBJECT  TO  EXECUTION. 


CHArTER  X. 

PEESONAL  PROPERTY  SUBJECT  TO  EXECUTION  BY 
LEVY  AND  SALE. 

§  109.     Introduction— Classification  of  subject. 
§  109a.  Law  of  the  situs  controls. 

KINDS  OF  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION. 
§  110.     Generally  all  tangible  property. 
§  111.     Money. 
§  112.     Clioses  in  action. 
§  112a.  Shares  or  interests  in  corporations. 
§  113.     Crops  not  harvested,  and  other  products  of  the  soil. 
§  114.     Fixtures. 

OF  THE  INTERESTS    IN    PERSONALTY    SUBJECT  TO  EXE- 
CUTION. 

§  115.  Only  the  real  as  contradistinguished  from  the  apparent  In- 
terests of  the  defendant. 

§  110.  Equitaltle  estates. 

§  117.  Estates  of  mortgagors. 

§  118.  Estates  of  mortgagees. 

§  119.  Leasehold  interests  in  real  and  personal  property. 

§  120.  Interests  of  pawnors  and  of  pawnees. 

§  121.  Interests  of  bailees. 

§  122.  Estates  in  remainder, 

§  123.  Inchoate  interests. 

§  124.  Property  held  under  conditional  sale. 

§  125,  Interests  of  cotenants  and  partners. 

§  12.")a.  Property  subject  to  execution  in  equity. 

DEFENDANTS  WHOSE  PROPERTY  CANNOT  BE  SEIZED. 

f  12G.     Counties  and  municipalities. 

§  12()a.  Property  of  (luasi-public  corporations, 

§  12Gb.  Property  of  insolvent  corporations. 

§  127,    Married  women  under  judgments  against  their  husbands. 

§  127a.  Property  expressly  or  impliedly  given  by  a  husband   to 

his  wife. 
§  128.     Married  women  under  judgments  against  themselves. 
§  12Sa.  Property  of  insane  persons. 


PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  403 

PEOFERTY    NOT    SUBJECT    TO    EXECUTION,  BECAUSE    IN 
CUSTODY  OF  THE  LAW. 
§  129.     Property  iu  the  bands  of  receivers  and  assignees. 
§  130.    Money  iu  the  liauds  of  sheriffs,   constables,   clerks,  and 

justices. 
§  130a.  Property  taken  from  a  prisoner  on  his  arrest. 
§  131.     Property  in  the  hands  of  administrators,  executors,  and 

guardians. 
§  132.     INIoney  iu  tlie  hands  of  federal,  state,  and  county  officers. 
§  133.     Money  in  the  hauds  of  officers  of  numicipalities. 
§  134.     Money  in  the  hauds  of  attorneys. 
§  135.     Goods  levied  upon,  or  otherwise  taken  into  the  possession 

of  an  officer  of  a  court. 
§  13.5a.  Property  the  subject  of  creditors'  suits. 
§  135b.  Termination  of  the  custody  of  the  law. 

PROPERTY   CONVEYED  OR   MORTGAGED  TO   HINDER,   DE- 
LAY,  OR  DEFRAUD   CREDITORS. 

§  13(;.     General  rule. 

§  137.     Creditors  who  may  avoid  a  fraudulent  transfer. 

§  137a.  Creditors  who  are,  within  meaning  of  law  against  fraudu- 
lent transfers. 

§  138.     Property  which  may  be  taken  from  fraudulent  grantee. 

§  139.     Origin  of  the  law  against  fraudulent  transfers. 

§  140.  Grantees  whose  interests  are  not  prejudiced  by  showing 
fraud  iu  transfer. 

§  141.     Good  faith  of  the  holder  of  the  property. 

§  142.     Voluntary  conveyances. 

§  143.     Convej-ances  to  the  use  of  grantor. 

§  144.     Couditioual  conveyances. 

§  145.     Mortgages. 

§  14G.    Assignments  for  benefit  of  creditors. 

ABSENCE   OF  CHANGE   OF  POSSESSION  AS  EVIDENCE   OF 
FRAUD  IN  TRANSFER. 

§  147.     Rule  of  the  English  cases. 

§  148.     Cases  iu  the  majority  of  the  United  States. 

§  149.     States  where  continuance  of  grantor  in  possession  is  per 

se  fraudulent. 
§  150.     Recapitulation  of  authorities. 

§  151.    Absolute  transfers  not  requiring  change  of  possession. 
§  152.     Transfers  to  secure  payment  of  indebtedness. 
§  152a.  In  conditional  sales. 
§  153.     Character  and  situation  of  property  as  dispensing  with 

necessity,  for  change  of  possession. 
§  1.54.    When  the  change  of  possession  must  be  made. 


409  TKUStA'AL   rilOl'KUTY  .SL'BJIXT  10  tXELUilON.        §  lU'J 

§  lo.j.  \\'li;it  is  a  sullicifiit  chan^^e. 

§  lT}i'>.  J  low  long  ilie  change  must  continue. 

§  ir»7.  I'loiieity  sold,   but  never  delivered, 

§  loS.  (jiouds  i»urcliased  llirough   fraud. 

?  109.    Introduction— Classification    of    Subject.— In 

followiii*;-  llic  instructions  contained  in  the  writ,  the 
officer  will  fu-st  seek  to  discover  i)ersonal  property* 
belon^inji'  to  the  defendant  or  defendants,  and  snbject 
it  to  execntion  and  forced  sale;  for,  by  the  statutes  pre- 
vailing in  a  majority  of  the  states,  it  is  the  duty  of  an 
officer  to  satisfy  a  writ  out  of  personal  property,  if 
such  can  be  found,  and  to  resort  to  real  estate  only 
when  liis  writ  cannot  be  otherwise  satisfied.  It  is  true 
that  some  of  the  earlier  English  statutes  applicable  to 
l)arts  of  the  colonies  "stripiied  lands  in  the  plantations 

1  Cape  Saide  Company's  Case.  3  Bland.  G40;  Daniel  v.  .Tustice, 
Dud.  (da.)  2;  Coe  v.  Wiekham,  33  Conn.  389;  Neilson  v.  Xeilson,  5 
Barb.  505;  Simpson  v.  Iliatt,  13  Ired.  470;  Hassel  v.  Southern  Bank,  2 
Head.  381;  Thatcher  v.  Dowell,  G  Wheat.  118.  But  in  Illinois  it  is  the 
duty  of  the  officer  tirst  to  levy  upon  real  estate.  Pitts  v.  Magie,  24  111. 
(510;  Farrell  v.  McKee.  .3G  111.  225.  A  levy  may  be  made  on  the  lands 
of  the  judgment  debtor,  although  he  has  personal  property,  by  his 
consent.  Smith  v.  Randall,  0  Cal.  47,  G5  Am.  Dec.  475;  Springer 
V.  Johnson.  3  Harr.  (Del.)  515.  Or  where  he  did  not  produce  per- 
sonal property  for  levy.  Graves  v.  Merwin.  19  Conn.  9G;  Sloan  v. 
Stanly,  11  Ired.  G27.  "Against  a  debtor,  refractory  or  negligent, 
the  proper  legal  remedy  is  to  lay  hold  of  his  effects  for  i)aying  his 
creditors.  Tliis  is  the  metliod  prescribed  by  the  Roman  law,  with 
the  following  limitation,  that  the  movables,  as  of  less  importance, 
must  be  sold  first.  But  the  Roman  law  Avas  defective  in  one  par- 
ricular,  that  the  creditor  was  disappointed  if  no  buyer  was  found. 
The  defect  is  supplied  by  a  rescript  of  the  emperor,  appointing 
that,  failing  a  purchaser,  the  goods  shall  be  adjudged  to  the  cred- 
itor by  a  reasonable  extent.  Among  other  remarkable  innovations 
of  the  feudal  law,  one  is,  that  land  was  withdrawn  from  commerce, 
and  could  not  be  attached  for  payment  of  debt.  Neither  could  tht; 
vassal  be  attached  personally,  because  he  was  boimd  personally  to 
the  superior  for  service.  The  movables,  therefore,  which  were  al- 
ways the  chief  subject  of  execution,  came  now  to  be  the  only  sub- 
ject."   Karnes'  Law  Tracts,  338- 


§  109       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  410 

of  the  sanctity  with  which  thev  had  been  guarded,  and^ 
by  subjecting  them  to  sale,  no  longer  considered  them 
as  a  secondary  fund  for  the  payment  of  debts  in  the 
hands  of  the  debtor,  but  rendered  them  equally  liable 
with  his  personalty;"^  and  it  is  probably  true  that,  in 
the  absence  of  any  statute  upon  the  subject,  real  and 
personal  property  may  be  treated  as  equally  liable  to 
execution,  and  the  plaintiff,  and,  in  the  absence  of  di- 
rections from  him,  the  officer,  may  elect  upon  which  a 
levy  shall  be  made.^  In  the  greater  part  of  the  United 
States,  however,  an  officer  must  seek  personal  property 
and  must  not  levy  upon  real  estate,  unless  personal 
property  of  the  defendant  sufficient  to  satisfy  the  writ 
cannot  be  found."* 

In  proceeding  to  discover  property,  the  officer  must, 
of  course,  exercise  diligence,  and  proceed  with  such 
wisdom  and  perception  as  would  characterize  the  ef- 
forts of  a  man  of  ordinary  intelligence  in  transacting 
his  private  business.  In  reference  to  this  part  of  the 
officers  business,  we  can  make  no  suggestions  likely  to 
be  of  any  practical  assistance,  unless  it  be  that  he 
must  exercise  that  degTee  of  diligence  which  a  pru- 
dent man  would  exercise  were  his  own  interests  at 
stake,  and  that  the  diligence  which  a  prudent  person 
would  exercise  would  manifestly  be  controlled  by  the 
circumstances  appearing  on  the  face  of  the  writ,  or 
otherwise  made  known  to  him.     If  he  is  directed  to 

2  Hansen  v.  Barnes'  Lessee,  3  Gill  &  J.  359,  22  Am.  Dec.  322. 

8  Dowdell  V.  Neal,  10  Ga.  148. 

4  Weir  V.  Clayton,  19  Ala.  132;  Wallver  v.  Hnkill,  1  Harr.  347; 
Eoljinson  v.  Burpo.  71  Ga.  r,2(',;  Hopidus  v.  Bnrcli.  3  Kelly.  222; 
W^ri.Klit  V.  Dick,  llfi  lud.  .>3S;  Collius  v.  liitchie,  31  Kan.  371;  Jakob- 
sen  V.  Wi}?an,  52  Minn.  6;  Flanders  v.  Batten,  50  llxin.  542;  Farrier 
V.  Houston,  100  N.  C.  309,  0  Am.  St.  Rop.  597;  Wright  v.  Young,. 
6  Or.  87:  Aldrich  v.  Wilcox,  10  R.  I.  405. 


411  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  109 

seize  or  sell  goods  whicli  are  in  the  hands  of  receiptors, 
and  nothing  is  disclosed  to  him  showing  any  reas(jn  for 
special  promptness,  he  is  suihciently  diligent  if  he  so 
proceeds  that  the  satisfaction  of  the  writ  may  be  rea- 
sonably anticipated  within  the  time  allowed  for  its  re- 
turn.'"' AYheuever,  on  the  other  hand,  "he  has  knowl- 
edge or  reasonable  ground  to  believe  that  there  will 
be  danger  resulting  to  the  plaintiff  by  delaying  the  ser- 
vice, he  is  bound  to  act  with  greater  diligence.''  **  Usu- 
ally the  plaintiff  is  able  to  assist  the  ollicer  by  pointing 
out  property  subject  to  execution  or  advising  him 
where  such  property  may  be  found,  but  the  failure  of 
the  plaintiff  to  do  this  does  not  relieve  the  officer  from 
the  duty  of  seeking  to  discover  property  subject  to  his 
writ.  The  absenc'e  of  information  from  the  plaintill 
will  not  excuse  the  inaction  of  the  officer,  nor  relieve 
him  from  liability  to  the  plaintiff  if  his  writ  remain'.^ 
unsatisfied,  when  diligence  on  the  part  of  the  officer  in 
seeking  to  discover  property  must  have  resulted  in  the 
making  of  a  levy  sufficient  to  satisfy  the  writ  in  whole 
or  in  part.' 

When  property  is  discovered,  it  is  essential  that  the 
officer  should  know  whether  it  is  such  as  he  is  author- 
ized to  seize  under  his  writ.  Uence,  this  chapter  will 
be  devoted  to  answering  the  inquiry.  What  personal 
property  may  be  *ized  under  execution?  Before  i)ro- 
ceeding  to  answer  this  question  in  detail,  we  must  stop 
to  remark  that  while  a  fieri  facias  authorizes  the  officer 
to  levy  only  upon  "property  subject  to  execution,''  yet 
this  does  not,  in  I  he  first  instance,  require  him  to  con- 

6  Dayton  v.  T.ynes.  31  Conu.  578. 

6  Tucker  v.  Bradley.  ir>  Conn.  .")0;  post.  §  2."4:  ante.  §  107. 

T  Lindsay's  Ex.  v.  .Vnnfieltl.  :\  Hawks.  ,"-lS.  14  .\m.  Dec  OOn;  State 
V.  Ownby.  4!)  Mo.  T2;  State  v.  Finn,  S7  Mo.  310;  Ilinman  v.  Burden, 
10  Wend.  3(17. 


§  109       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  412 

siller  the  question  of  exemptiou  from  execution  where 
the  exemption  does  not  arise  from  the  nature  of  the 
property.  For  Ave  shall  hereafter  see  that  the  privi- 
lege accorded  by  law  to  certain  persons  to  hold  a  speci- 
fied amount  or  character  of  property,  as  exempt  from 
forced  sale,  is  in  most  states  a  personal  privilege,  of 
which  the  officer  need  take  no  notice  until  the  defend- 
ant claims  the  benefit  of  the  law,  and  specifies  what 
propert}-  he  wishes  to  retain.**  Prima  facie,  all  per- 
sonal property  is  subject  to  execution,  and  an  officer 
may  safely  proceed  on  this  presumption  until  his  atten- 
tion is  called  to  the  fact  that  something  upon  which  he 
has  levied,  or  is  about  to  levy,  is  of  a  class  which  may 
be  exempt,  and  that  the  debtor  is  entitled  to  an  exemp- 
tion thereof,  and  wishes  to  assert  his  privilege  in  this 
respect."  Our  inquiry,  therefore,  in  this  chapter  is. 
What  property  may  the  sheriff  levy  upon  where  the 
benefit  of  exemption  is  not  claimed  as  a  personal  privi- 
lege? We  shall  treat — 1.  Of  the  kinds  of  personal 
property  subject  to  execution;  2.  Of  the  estates  there- 
in which  are  so  subject;  3.  Of  defendants  whose  prop- 
erty cannot  be  seized;  4.  Of  property  withdrawn  from 
execution  because  in  custody  of  the  law;  5.  Of  prop- 
erty transferred  or  mortgaged  with  intent  to  hinder, 
delay,  or  defraud  creditors;  6.  Of  the  want  of  change 
of  possession  as  evidence  of  fraud  ^n  the  transfer  of 
property;  7.  Of  property  which  has  been  sold,  but 
never  delivered  to  the  purchaser;  and  8,  Of  property 
acquired  by  fraud.  The  principles  announced  in  treat- 
ing of  the  third,  fourth,  and  fifth  subdivisions  are  as 
applicable  to  real  as  to  personal  property.  If  property 
is  not  subject  to  execution,  a  levy  thereon  and  a  sale 

8  See  §  211. 

•  P.lythe  V.  .Tett,  52  Ark.  ."47;  Scanlan  v.  r.uiling,  03  Ailc.  MO. 


413  PERSONAL  I'KOl'ERTY  SUBJECT  TO  EXElUTION.      §  lOiia 

thereof,  based  on  such  levy,  are  utterly  void.*"  But  if 
the  exemption  of  the  property  is  a  mere  personal  privi- 
lege available  to  defendant  when  he  may  choose  to 
claim  it,  a  sale  under  execution  by  his  express  or  im- 
plied assent  is  valid. 

§  109  a.  Law  of  the  Situs  Controls.— The  question 
whether  property  is  subject  to  execution  is  one  which 
must  be  determined  by  the  laws  of  the  state  in  which 
it  happens  to  be.  The  owner  of  property  may  send  it 
into  another  state,  or  it  may  alwaj's  have  been  in  one 
state  while  he  resided  in  another,  and,  in  either  case, 
the  question  may  arise  as  to  whether  the  right  to  sub- 
ject this  proi)ert3'  to  execution  is  regulated  and  con- 
trolled by  the  law  of  his  domicile,  or  by  that  of  the 
state  in  which  the  i)ropert3'  is  found.  This  question 
arises  most  frequently  in  cases  where  the  owner  in  the 
state  of  his  domicile  has  made  some  conveyance  or 
transfer  of  the  projK'rty  valid  there,  and  which  would 
there  remove  the  property  from  the  reach  of  his  execu- 
tion creditors,  but  which  is  im>}»('rative  against  such 
creditors  by  the  laws  of  the  state  in  which  the  ])roperty 
is  situate,  for  want  of  change  of  possession  or  from 
some  other  cause  known  to  the  laws  of  the  state.  In 
all  such  cases,  the  laAV  of  the  state  in  which  the  ])rop- 
ert  is,  controls,  irrespective  of  the  question  of  the 
domicile  of  the  parties.  If  the  ]n'operty  is  seized  and 
sold  in  such  state,  pursuant  to  the  laws  thereof,  and 
by  proceedings  sufficient  in  foi'ui  to  vest  title  in  the 
purchaser  there,  such  title  must  be  respected  in  every 
other  state  in  Avliich   it  may  be  drawn    in    (]n«'stion, 

10  Barbmir  v.  ■Rrcckenridiro.  4  F'ibb.  r)4S:  .TcfFrics  v.  Slu'iburn.  21 
Ind.  112:  (Jriffin  v.  SpcnccM-,  C  TTill.  "12.-,:  r.i-olow  v.  Finch,  11  Barb. 
498;  Goocli  v.  Atkins.  14  Mass.  378. 


§  109a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  414 

though  by  the  laws  of  the  latter  state  the  property 
was  not  subject  to  execution  as  the  property  of  the 
defendant  in  execution  at  the  time  it  was  seized  and 
sold.^^ 

Possibly  there  are  cases  constituting  exceptions  to 
the  rule  that  the  situs  of  property  necessarily  controls 
the  question  w^hether  it  is  subject  to  execution,  or, 
more  accurately  speaking,  there  are  cases  in  which 
equity  may  interpose  to  prevent  parties  from  enforc- 
ing this  rule  of  law,  and  this  on  the  ground  that,  equi- 
tably, property  may  sometimes  be  regarded  as  being  in 
a  state  or  country  where  physically  it  is  not.  Thus, 
if  a  debtor  and  creditor  reside  in  the  same  state,  and 
the  former,  there  owning  property  which  is  not  subject 
to  execution  by  its  laws,  takes  such  property  for  a  tem- 
porary purpose  into  another  state,  to  the  courts  of 
which  his  creditor  resorts  in  an  attempt  to  there  sub- 
ject the  property  to  execution  or  attachment  before  it 

can  be  returned  to  the  state  of  the  domicile  of  both  par- 

« 

ties,  there  are  courts  which  will,  in  the  state  of  the 
domicile,  enjoin  the  creditor  from  pursuing  his  reme- 
dies in  the  other  state.^^  Upon  this  question  there  is 
much  conflict  among  the  authorities,  and  we  shall  refer 
its  further  consideration  to  the  chapter  on  exemptions 
from  execution.^'  ^ 

Credits,  being  intangible,  have  of  themselves  no 
situs,  unless  it  be  the  place  where  the  debtor  happens 
from  time  to  time  to  be.  They  may  ordinarily  be  gar- 
nished in  the  mode  sanctioned  by  laws  of  that  place, 
whether  the  obligation  accrued  or  the  creditor  resides 

11  Greon  v.  Ann  Kuskirk,  5  Wall.  307;  Ilervey  v.  E.  I.  Locomotive 
Works,  93  U.  S.  6G4. 

12  Mumper  v.  Wilson,  72  la.  163,  2  Am.  St.  Rop.  238, 
12a  Tost,  §  209. 


415  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  110 

there  or  not/^  except  that,  iu  some  instances,  the  courts 
of  a  state  may,  by  injunction,  prevent  a  creditor,  resi- 
dent therein,  from  proceeding  in  another  state  to  sub- 
ject to  execution  debts  which  are  not  so  subject  at  the 
domicile  of  the  debtor  and  creditcn*.'"*  This  question 
will  be  considered  more  in  detail  in  the  chapter  upon 
garnishment. 

KINDS  OF  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION. 

§110.  Generally  All  Tangible  Property  is  Subject  to 
Levy. — "The  general  rule  of  law  is,  that  all  chattels, 
the  property  of  the  debtor,  may  be  taken  in  execu- 
tion." ^^  Perhaps  it  would  be  more  accurate  to  say 
that  all  kinds  of  personal  property  of  the  debtor,  which 
can  be  by  him  made  the  subject  of  a  voluntary  transfer 
.of  title,  can,  by  execution,  be  made  the  subject  of  an 
involuntary  transfer.  It  is  sometimes  said  that  noth- 
ing can  be  seized  by  the  officer  which  cannot  be  sold.^* 
But  this  is  not  strictly  true.  The  object  of  the  levy  is 
to  obtain  satisfaction;  and  this  object  is  usually,  but 
not  universally,  consummated  by  a  sale  of  the  property 
seized.  The  officer  cannot  lawfullv  seize  anvthing" 
which  could  not  be  made  to  contribute  to  the  satisfac- 
tion of  the  judgment.     But  if  a  thing  can,  without  sale, 

13  Harwell  v.  Sharp.  85  Ga.  124,  21  Am.  St.  Rep.  149;  Lancashire 
I.  Co.  V.  Corbetts,  1G5  111.  592.  50  Am.  St.  Rep.  275;  Missouri  P. 
Go.  V.  Sharitt.  43  Kan.  375,  19  Am.  St.  Rep.  143,  and  note;  Berry 
V.  Davis,  77  Tex.  191,  19  Am.  St.  Rep.  748;  Railroad  v.  Baruhill,  91 
Tenn.  305,  30  Am.  St.  Rep.  889. 

14  Miller  v.  Gittings,  85  Md.  GOl,  GO  Am.  St.  Rep.  352;  Griggs  v, 
Docter,  89  Wis.  824,  46  Am.  St.  Rep.  824. 

15  Turner  v.  Fendall.  1  Cranch,  1.34;  Crocker  on  Sheriffs.  §  451, 
Thus  boats,  though  employed  in  navigation,  are  subjeet  to  execu- 
tion: Knisely  v.  Parker.  .34  111.  481;  Nimiok  v.  Louisiana  etc.  Co.. 
16  La.  An.  4<":  Sibley  v.  Furuey.  22  La.  An.  1G3:  Commonwealtb 
V.  Frye,  4  W.  Va.  721. 

16  Knox  V.  Porter,  IS  Mo.  243;  Watson  on  Sheriffs,  178. 


§  110       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  416 

be  applied  upon  the  writ,  it  may  be  taken.     Nor  is  it 
essential  that  its  sale  under  ordinary  circumstances  be 
lawful.     Thus,  if  it  be  an  article,  the  sale  of  which 
may,  upon  public    policy,  be  restricted,  and   perhaps 
forbidden,  yet  if  it  still  be  recognized  as  property,  it 
may  be  seized  and  sold  under  execution.^'^     This  ques- 
tion was  recently  presented  in  a  state  w^hich  had,  by 
the  adoption  of  a  local  oi)tion  law,  forbidden  any  per- 
son from  selling,  bartering,or  giving  away  intoxicating 
liquors.     It  was  held  that  the  law  did  not  forbid  the 
keeping  and  owning  of  such  liquors,  or  even  the  pledg- 
ing them  as  security  for  a  debt,  and,  hence,  that  it  did 
not  remove  them  from  the  class  of  property  subject  to 
execution.^**     If,  however,  a  statute  can  be  correctly  in- 
terpreted as  destroying  property  in  such  liquors,  or  as 
rendering  every  sale  thereof  obnoxious  to  the  law,  then 
they  are  not  subject  to  a  lev}'  under  execution,  for  a 
levy  can  be  justified  only  on  the  ground  that  it  may 
contribute  to  the  satisfaction  of  the  judgment.     Hence, 
in  Maine,  Massachusetts  and  Rhode  Island,  w'here  the 
statutes  prohibit  any  person  from    manufacturing  or 
selling  any  such  liquors,  and  restrict  their  disjjosition 
to  sales  made  by  agents  selected  by  public  officers  of 
towns  and  cities,  it  was  held  that,  as  there  was  no  ex- 
ception in  favor  of  sale  by  judicial  process,  and  as  ''to 
permit  such  sales  would  be  to  afford  most  ample  facili- 
ties for  evading  the  law,"  and  as  the  law  deems  a  sale 
of  intoxicating  liquors  injurious  to  the  public  health 
and  morals,  their  levy  u^jon  and  sale  under  execution 
cannot  be  permitted.*'^ 

17  Tiifker  v.  Adnms.  fr.  X.  IT.  301;  Howe  v.  Ste^vart.  40  Vt.  14.". 

i«  Fears  v.  State.  102  Ga.  274. 

19  In.iralls  y.  Baker.  1.'?  Allen.  440:  Kiff  v.  Old  r'ol,iiiy  TI.  11..  117 
Mass.  .")01.  19  Am.  l{ep.  420;  Barrou  v.  Aruold,  Kj  K.  I.  22;  Nieliols 
V.  Valentine,  3G  Me.  322. 


417  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  110 

"It  appears  to  us  to  comport  with  good  policy,  as 
well  as  justice,  to  subject  everything  of  a  tangible  na- 
ture, excepting  such  things  as  the  humanity  of  the  law 
preserves  to  the  debtor,  and  mere  choses  in  action,  to 
the  satisfaction  of  the  debtor's  debts."  '^ 

A  copyright  is  "an  incorporeal  right,  secured  by  stat- 
ute to  the  author;  and,  being  intangible,  is  not  subject 
to  seizure  and  sale  at  common  law."  ^^  "There  would 
certainly  be  great  difficulty  in  assenting  to  the  propo- 
sition that  patent  and  copyrights,  held  under  the 
laws  of  the  United  States,  are  subject  to  seizure  and 
sale  on  execution.  Not  to  repeat  what  is  said  on  this 
subject  in  14  How.  531,  it  may  be  added  that  these  in- 
corporeal rights  do  not  exist  in  any  particular  state  or 
district — that  they  are  coextensive  with  the  United 
States.  There  is  nothing  in  any  act  of  Congress,  or  in 
the  nature  of  the  rights  themselves,  to  give  them  local- 
ity anywhere,  so  as  to  subject  them  to  the  process  of 
courts  having  jurisdiction  limited  by  the  lines  of  states 
and  districts.  That  an  execution  out  of  the  court  of 
common  j)leas  for  the  county  of  Bristol,  in  the  state  of 
Massachusetts,  can  be  levied  on  an  incorporeal  right 
subsisting  in  Rhode  Island  or  Xew  York,  will  hardly  be 
pretended.  That  by  the  levy  of  such  an  execution  the 
entire  right  could  be  divided,  and  so  much  of  it  as 
might  be  exercised  in  the  county  of  Bristol  sold,  would 
be  a  position  subject  to  much  difficulty."  "^ 

20  Handy  v.  Dobbin,  12  Johns.  220;  Twinam  v.  Swart,  4  Lans. 
264. 

21  Stephens  v.  Cady,  14  How.  531. 

22  Stevens  v.  Gladdinpr,  17  IIow.  451.  See  Cooper  v.  Gunn,  4  B. 
Mon.  504,  assuming  that  copyright  is  not  subject  to  execution;  and 
Woodworth  v.  Curtis,  2  Wood.  &  M.  530,  assuming  that  it  is  sub- 
ject. Banker  v.  Caldwell.  3  Minn.  94,  cited  by  Mr.  Herman  as 
showing  that  (Mipyrights  and  manuscripts  are  subject  to  execution. 
Is  not  an  authority  on  eitlu-r  side  of  the  question. 

Vol.  I.— 27 


§  110       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  418 

Wliether  unpublished  manuscripts  are  subject  to 
execution  is  a  question  which  seems  to  have  been  deter- 
mined in  but  one  case.  In  that  case  a  set  of  abstract 
books  containing,  we  presume,  memoranda  compiled 
from  the  public  records,  and  so  arranged  as  to  facili- 
tate the  examination  of  titles  to  real  estate,  was  made 
the  subject  of  an  action  of  replevin,  and  the  question  of 
their  liability  to  execution  was  assumed  by  the  court 
to  be  involved.  The  court  held  that  the  proprietor  of 
such  a  manuscript  had  a  right  either  to  publish  it  or 
to  withhold  it  from  publication;  that  this  right  was  a 
personal  one,  of  which  he  could  not  be  divested  other- 
wise than  by  his  own  act;  that  the  value  of  the  books 
depended  on  the  information  contained  therein,  and 
not  on  the  books  themselves;  that  "no  law  can  compel 
a  man  to  publish  what  he  does  hot  choose  to  publish;  " 
that  "it  would  be  very  absurd  to  hold  that  books  could 
be  seized  and  sold  under  execution,  which,  after  the 
sale,  the  purchaser  could  not  use"  ;  and,  finally,  that 
the  books  were  not  subject  to  seizure  and  sale  under 
execution.^"  The  reasoning  of  this  decision  does  not 
seem  irresistible. 

In  a  set  of  abstract  books,  or  in  any  other  manu- 
scripts, we  see  nothing  intangible,  nothing  which 
makes  it  difficult  or  improper  to  subject  them  to  execu- 
tion. Confessedly  they  are  property,  and,  as  such, 
may  be  valuable  to  their  compiler  or  owner,  and  doubt- 
less he  may  by  his  voluntary  transfer  divest  himself 
of  title,  and  vest  it  in  another.  ITis  transfer  may  not 
divest  him  of  the  information  contained  in  them,  and 
certainly  will  not  impair  the  skill  required  in  their 
compilation  or  use.     The  fact   that  he  does  not  and 

23  Dart  V.  Woodbouse,  40  Mich.  399,  29  Am.  Rep.  544. 


419  PERSONAL  PROrERTY  SUBJECT  TO  EXECUTION.        §  110 

cannot  transfer  his  iufcn-mation  and  skill  constitutes 
no  ground  for  denying  his  ability  to  transfer  so  much 
as  is  transferable.  In  a  state  whose  statutes  in  gen- 
eral terms  declare  all  property  subject  to  execution,  we 
can  perceive  no  reason  for  holding  abstract  books  or 
other  valuable  writings  not  subject  to  execution.  If 
the  court  meant  by  saying  that  it  would  be  "absurd  to 
hold  that  books  could  be  seized  and  sold  under  execu- 
tion, which  the  purchaser  could  not  use,"  that  nothing 
can  be  sold  which  a  purchaser  cannot  comprehend  or 
skillfully  manage,  then  a  book  might  be  reserved  from 
execution  sale  because  written  in  a  language  which 
none  of  the  bidders  understood,  or  a  musical  instru- 
ment, because,  like  Hamlet's  flute,  they  were  not  com- 
petent to  play  upon  it.  That  the  interests  held  by  in- 
ventors and  authors,  under  grants  of  letters  patent  or 
copyright,  are  not  directly  subject  to  execution  sale, 
is  owing  to  their  intangible  nature,  and  the  fact  that 
they  cannot  be  said  to  be  located  in  any  particular 
place,  so  as  to  be  subject  to  seizure  and  sale.  The  man- 
uscript, however,  is  not  intangible.  If  it  should  be 
sold  under  execution,  there  would  be  no  more  difficulty 
in  defining,  recognizing,  and  preserving  the  rights  and 
in^rests  of  the  purchaser  than  if  his  purchase  had  been 
made  at  a  voluntary  sale.  Following  the  spirit  of  an 
earlier  decision  in  the  same  state  affirming  that  the  ab- 
stract books  of  searchers  of  records  are  not  subject  to 
execution,  the  supreme  court  of  Michigan  has  held 
that  they  are  not  property  subject  to  taxation,^  but 
upon  this  subject  the  courts  of  other  states  have 
reached  an  opposite  conclusion,  and  thereby,  in  effect, 
affirmed  that  such  books,  being  property  both  valuable 

24  Perry  v.  City  of  Big  Rapids.  G7  Mich.  UC.  11  Am.  St.  Rep.  570. 


§  110       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  420 

and  tangible,  are  subject  to  execution.^®  A  chattel 
mortgage  was  executed  upon  a  set  of  abstract  records^ 
maps,  and  indices  of  land,  but  its  foreclosure  was  re- 
sisted on  the  ground  that  the  property  was  a  copy  of 
the  official  records  of  the  county,  or  indices  thereto, 
that,  without  knowledge  of  the  arrangement  of  such 
copies  and  indices,  the  property  was  of  no  value,  that  it 
was  the  product  of  the  work  and  mind  of  the  secretary 
of  the  corporation  mortgagor,  and  that  none  of  the 
property  was  of  any  value,  "unless  the  party  having 
possession  thereof  had  the  right  to  publish  and  copy 
the  same."  The  trial  court,  nevertheless,  directed  a 
sale  of  the  property  mortgaged.  The  supreme  court, 
in  affirming  this  judgment,  approved  the  views  herein- 
before expressed,  Saying:  "It  seems  to  us  that  these  ab- 
stract books  were  not  so  intangible  or  incorporeal  that 
they  could  not  be  subject  to  levy  and  sale."^® 

Private  books  and  papers,  having  little  or  no  market 
value,  but  containing  entries  of  accounts,  memoranda 
of  facts,  evidences  of  property  or  in  support  of  claims, 
powers  of  attorney,  or  other  authorizations,  which  en- 
tries and  memoranda,  while  they  may  give  pleasure  to 
their  owner  or  be  useful  to  him  even  in  the  management 
of  his  property,  or  the  assertion  of  his  rights,  and  are 
property  which  he  may  recover  in  some  appropriate  ac- 
tion, if  wrongfully  taken  from  him,  are  not  subject  to 
levy  on  an  execution  against  him.^'' 

Though  not  subject  to  seizure,  patent  rights  are  sub- 
ject to  execution.     In  England  they  pass  to  assignees 

25  Leon  L.  &  A.  Co.  v.  Equalization  Board,  86  la.  127,  41  Am.  St. 
Kep.  4SG;  Booth  v.  Abstract  Co.,  8  W^ash.  549,  40  Am.  St.  Rep.  921. 

28  Washington  Bank  v.  Fidelity  A.  etc.  Co., 15  "Wash.  487,  55  Am. 
St.  Rep.  902. 

27  Oystead  v.  Shed,  12  Mass.  505. 


421  PERSONAL  PUOPEKTY  SUBJECT  TO  EXECUTION.       9  110 

in  bankruptcy  for  the  benefit  of  creditors."**  In  the 
United  States  they  may  be  reached  by  proceedin<,^3 
either  in  chancery  or  supplemental  to  execution,  where- 
by the  defendant  may  be  compelled  to  transfer  by  a 
proper  writing  all  his  right,  title,  and  interest  in  the 
patent  right  to  a  receiver  appointed  to  sell  the  same, 
and  apply  the  proceeds  to  the  satisfaction  of  the  judg- 
ment.-'* Certainly  the  right  conferred  by  letters  pa- 
tent cannot  be  seized  upon  or  taken  into  possession  by 
the  sheriff,  though  such  letters  themselves  are  tangible 
and  susceptible  of  being  seized,  if  there  is  any  statute 
to  authorize  it;  but  if  there  can  be  a  state  statute  sub- 
jecting to  execution  the  rights  conferred  bysuch  letters, 
we  can  scarcely  imagine  that  the  mere  inability  to  find 
and  take  possession  of  the  letters  constituting  evidence 
of  the  right  would  be  held  an  obstacle  to  proceeding. 
The  cases  have  generally  been  put  upon  the  broad 
ground  that  neither  letters  patent  nor  the  rights  con- 
ferred thereby  were  subject  to  execution  by  the  ordin- 
ary mode  of  levy  and  sale."**  Perhaps  they  may  be 
made  so  by  a  statute  necessarily  directed  to  the  accom- 
plishment of  this  result.  Tims,  one  judge  has  said: 
"I  see  no  reason,  however,  to  deny  the  power  of  the 
legislature  to  authorize  the  taking  in  execution  and 
sale  of  a  patent  right  by  process  of  law."  ^^  He  there- 
fore sustained  a  levy  upon  a  patent  right  belonging  to 

28  Hesse  v.  Stevenson.  3  Bos.  &:  P.  .577;  NIas  v.  Adamson,  3  Barn. 
&  Aid.  225;  Coles  v.  Barrow,  4  Taunt.  754. 

29  Pacific  Bank  v.  Robinson,  57  Cal.  520,  40  Am.  Rep.  120;  Barnes 
V.  Morgan.  3  Hun,  703;  Stephens  v.  Cady,  14  How.  531;  Ager  v. 
Murray.  105  U.  S.  12G. 

30  Peterson  v.  Sherifif,  115  Cal.  211;  Cawer  v.  Peck,  131  Mass.  291; 
Ager  V.  Murray.  105  U.  S.  12G. 

31  Erie  W\  M.  Co.  v.  National  W.  Co..  G3  Fed.  Rep.  248;  Flagg  v. 
Farns worth,  IG  Phi! a.  57,  12  W.  N.  C.  500. 


§  110       PERSONAL  PPtOPERTY  SUBJECT  TO  EXECUTION.  422 

a  corporation  made  under  a  special  fieri  facias  author- 
ized to  be  issued  by  the  laws  of  Pennsylvania.  These 
laws  provide  that  the  plaintiff  may  have  execution  by 
fieri  facias  commanding  "the  sheriff  or  other  officer  to 
levy  the  judgment  on  anj-  personal,  mixed,  or  real  prop- 
erty, franchises,  and  rights  of  such  corporation,  and 
thereupon  proceed  to  sell  the  same."  ^^  The  mode  of 
levy  does  not  seem  to  be  pointed  out  b}'  the  statute,  nor 
is  there  anything  in  the  case  cited  to  show  what  mode 
was  resorted  to  in  levying  upon  and  selling  the  prop- 
erty in  question.  If  the  patentee  of  an  invention  con- 
structs, though  not  for  sale,  one  or  more  of  the  ma- 
chines or  implements  covered  by  his  letters  patent,  it, 
being  a  tangible  thing,  is  subject  to  seizure,  and  con- 
sequently to  sale  under  execution.  The  purchaser's 
rights  are  not  limited  to  the  mere  materials  purchased, 
but  include  the  right  to  use  the  machine  as  fully  as  if 
such  machine  had  been  voluntarily  sold  by  the  pa- 
tentee.^ 

Seats  in  stock-boards  in  large  cities  have  become,  in 
some  instances,  of  great  value,  and,  though  in  the  na- 
ture of  personal  privileges,  their  transfer  from  one  per- 
son to  another  has  generally  been  respected,  if  made  in 
compliance  with  the  rules  or  by-laws  of  the  association. 
They  have  been  spoken  of  by  the  courts  as  property; 
and  it  has  been  said  that  on  bankruptcy  they  would 
pass  to  the  assignee,  subject  to  the  rules  of  the  stock- 
board.^*  If  tliis  be  true,  they  must  be  subject  to  execu- 
tion in  some  mode,  perhaps  by  creditor's  bill,  or  by  pro- 
ceedings supplemental  to  execution,  in  which  a  receiver 
could  be  appointed,  and  a  transfer  to  him  compelled. 

82  Pepper  &  Lewis's  Digest,  2006. 

83  Wilder  v.  Kent,  ]5  Fed.  Rep.  217. 

84  Hyde  v.  Woods,  94  U.  S.  52^}. 


423  PERSONAL  PllOPERTY  iSUBJECT  TO  EXECUTION.        §  llu 

In  some  states  the  broad  proposition  is  maintained 
that  seats  of  this  character,  however  valuable  they  may 
be,  are  not  liable  to  seizure  or  sale,  nor  indeed,  to  be 
subject  to  execution  by  any  proceeding,  whether  legal 
or  equitable.-'^  In  Illinois,  it  appeared  that  a  certifi- 
cate of  membership  in  the  board  of  trade  of  Chicago 
entitled  the  member  to  attend  the  meetings  of  the 
board  and  to  deal  in  various  products  of  the  country, 
and  that  this  privilege  was  of  great  value,  though  no 
member  received  any  pecuniary  profit  from  the  corpo- 
ration or  from  its  capital  or  revenue,  except  the  advan- 
tages derived  in  the  way  of  trade  from  the  privilege  of 
being  a  member  and  permitted  as  such  to  transact  busi- 
ness in  the  rooms  of  the  board.  The  court  held  that 
the  certificate  of  membership  and  the  privileges  there- 
by conferred  could  not  be  regarded  as  propertj^  because 
property  was  "the  right  and  interest  which  a  man 
has  in  lands  and  chattels,  to  the  exclusion  of  others." 
*'Such  certificate,"  said  the  court,  "is  neither  lands  nor 
chattels."  It  further  appeared  that  the  member  could 
not  dispose  of  his  membership  as  he  pleased,  but  the 
disposition  of  it  could  only  be  to  such  person  as  the 
board,  through  its  directors,  might  determine.  Each 
person  becoming  a  member  was  required  to  pay  an 
initiation  fee  of  five  thousand  dollars,  and  the  evidence 
showed  that  a  certificate  of  membership  was  regarded 
in  the  market  as  Avorth  four  thousand  dollars.  The 
court  determined  that  the  rights  held  by  the  member 
under  his  certificate  could  neither  be  levied  upon  and 
sold,  nor  subjected  to  execution  either  by  garnishment 
or  by  proceedings  in  chancery.^*''     We  mny  readily  con- 

85  Pancoast  v.  Gowen,  93  Pa.  St.  GG;  Thompson  v.  Adams,  93  Pa. 
St.  5o. 

36  Parclav  v.  Sniitli.  107  111.  349,  47  Am.  Pvop.  437. 


§110       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  424 

cede  that  privileges  like  those  under  consideration  are 
not  subject  to  levy  and  sale  in  the  mode  appropriate 
to  the  levy  and  sale  of  other  property,  and  that  any  at- 
tempt to  so  levy  upon  and  sell  them  must  be  unavail- 
ing.^" They  are,  nevertheless,  in  our  judgment,  sub- 
ject to  execution  in  the  sense  that  they  may  be  reached 
by  appropriate  proceedings.  After  considering  the 
authorities  upon  the  subject,  the  supreme  court  of 
California  announced  the  following  as  its  conclusion: 
*'We  conclude,  therefore,  that  the  weight  of  authority 
and  the  better  reasoning  support  the  proposition  that 
such  a  seat,  or  membership,  is  property,  and  should  be 
applied,  as  other  property  of  a  debtor, to  the  payment  of 
his  debts.  To  hold  that  it  cannot  be  thus  applied  would 
be  to  establish  a  rule  giving  to  members  of  such  associa- 
tions the  power  to  invest  fortunes  under  the  name  of 
licenses  and  privileges,  and  by  constitutions  and  regu- 
lations to  establish  a  law  of  exemption  for  the  same."  *** 
The  mode  of  reaching  the  property  sustained  in  this 
case  was  by  proceedings  supplementary  to  execution, 
in  which,  upon  an  examination  of  the  judgment  debtor, 
disclosing  that  he  owned  the  seat  in  question,  a  re- 
ceiver was  appointed,  with  power  to  sell  the  same  and 
api)ly  the  proceeds  thereof  in  satisfaction  of  the  judg- 
ment. It  appeared  that,  by  the  constitution  and  by- 
laws of  the  stock  and  exchange  board  whose  member- 
ship was  in  question,  the  legal  title  or  ownership  of 
the  property  of  the  association  was  vested  in  certain 
officers  in  trust  for  the  benefit  and  enjoyment  of  its 
members,  and  that  "no  member,  under  any  circum- 
stances, shall  be  deemed  to  have,  or  claim,  or  possess, 

37  Lowenberg  v.  Greenebaiim,  99  Cal.  162. 

88  Habenleht  v.  Lissak.  78  Cal.  351,  12  Am.  St.  Rep.  63;  Londheim 
V.  White,  67  How.  Pr.  467. 


425  PERSONAL  I'ilOi'KRTY  SUJiJECT  TO  EXECUTION.        §  110 

any  individual  ri^^lit,  title,  or  interest  in  the  property 
or  assets  of  tlie  association,  except  when  tlie  same  shall 
be  finally  dissolved  and  its  affairs  wound  up  by  its  then 
remaining  members,"  and  that  "every  application  for 
membership  is  subjected  to  the  scrutiny  of  a  com- 
mittee, whose  report,  if  favorable,  entitles  the  appli- 
cant to  be  balloted  for,  and,  whether  favorable  or  un- 
favorable, the  applicant  may  be  rejected  by  twenty 
negative  votes;  that,  if  a  member  of  the  association  join 
any  similar  organization  in  this  state,  he  may  be  im- 
mediately expelled;  that  it  is  distinctly  understood  and 
agreed  between  the  board  and  each  member  thereof 
that  the  board  reserves  the  right  to  reject  any  nom- 
inee." 

A  personal  lien  existing  in  favor  of  any  person,  and 
not  liable  to  voluntary  transfer,  can  never  be  subjected 
to  a  writ  of  execution.^'** 

An  agreement  that  the  plaintiff  will  not  seek  to  sat- 
isfy his  judgment  except  by  levy  on  specified  property 
is  valid,  and  may  be  enforced  against  him.'** 

A  college  was  chartered  for  the  education  of  girls, 
and  a  donation  was  made  to  it  of  the  sum  of  five  thou- 
sand dollars,  in  consideration  of  which  the  authorities 
of  the  college  granted  to  the  donor  a  perpetual  scholar- 
ship in  the  college,  "which  shall  give  the  right  to  place 
and  keep  in  the  college  one  pupil,  who  shall  have  all 
the  advantages  of  the  college  free  of  charge."  The 
donor  subsequently  became  insolvent,  and  a  bill  was 
filed  against  him  for  the  purpose  of  subjecting  to  sale 
his  right  or  power  to  appoint  to  the   scholarship.     It 

S9  Holly  V.  Hufrgeford.  S  Pick.  73,  10  Am.  Dpp.  303;  Kittrodcre  v. 
Sumner.  11  Pick.  .^0;  Lecrg    v.  Evans.  0    Meos.  &  W.  3G;  S    Dowl. 
P.  C.  177;  4  .Tnr.  107.     Soo  also  §  112. 
.    *o  Whitney  v.  Ilavi'iliill  Ins.  Co.,  9  Allen,  3.'. 


§  111       PK1;S0NAL  PROPERTY  SUBJECT  TO  EXECUTION.  42C 

was  held,  however,  that  the  right  in  question  was  not 
that  "of  an  ordinary  scholarship  sold  bj  an  institution 
to  a  purchaser,  with  right  to  use  or  sell  and  transfer 
it  as  he  might  choose,  as  is  often  done  by  schools.  Kor 
is  it  a  power  over,  or  attached  to,  real  estate  or  tangible 
property.  It  is  not,  in  any  correct  sense  of  the  term, 
an  estate.  It  is  merely  a  privilege  or  power  to  be  ex- 
ercised by,  and  with  consent  of,  the  college,  and  under 
its  rules  and  regulations";  that  the  donor  might,  sub- 
ject to  the  reasonable  rules  and  requirements  of  the  col- 
lege, appoint  whom  he  pleased,  or  decline  altogether  to 
appoint;  that  it  was  a  privilege  personal  to  him,  and 
was  not  such  a  right  as  could  be  seized  and  sold  for 
debt  in  any  mode  whatsoever.^^ 

§  111.  Money. — it  was  at  one  time  insisted  that 
money  was  not  subject  to  seizure  upon  execution,  be- 
cause it  could  not  be  sold."**  But  this  reason  did  not 
long  prevail;  and  it  is  doubtful  whether  it  ever  pre- 
vailed at  all.  For  while  money  may  not — or,  more 
properly  speaking,  need  not — be  sold,  in  order  to  apply 
it  to  the  execution,  yet  this  furnishes  no  sensible  rea- 
son why  it  should  net  be  taken  and  credited  on  the  writ. 
The  rule  is  now  well  established  that  "money,  whether 
in  specie  or  in  bank  notes  (which  are  treated  civiliter, 
as  money),  if  in  the  possession  of  the  defendant,  or  ca- 
pable of  being  identified  as  his  property,  may  be  taken 
in  execution."  '^^     In  England,  the   decisions   on   this 

<i  P.ank  V.  Morrow.  nO  Tenn.  527.  <i3  Am.  St.  Rep.  8.'.",. 

<2  Thus,  in  Armistoad  v.  Philpot.  Doufr.  231,  "Loi'd  :\ran«field  said 
he  helieverl  there  were  old  cases  where  it  had  been  hold  that  the 
Kheriff  conld  not  taTte  money  in  execution,  even  though  found  in  the 
defendant's  escritoire,  and  that  a  quaint  reason  was  given  for  it, 
viz..  that  money  could  not  be  sold." 

43  Crane  v.  Freese,  1  Ilarr.  (N-  .T.)  307:  Turner  v.  Fciidall.  1 
Crauch,    134;  State    v.  Taylor,  5G    Mo.  495;  Spencer    v.  l?iait;dell,  4 


427     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.   §  HI 

subject  are  infrequent,  meager,  and  contradictory. 
The  cases  of  Armistead  v.  Philpot,  Doug.  231,  and  of 
The  King  v.  Webb,  2  Show.  IGl,  are  clearly  in  harmony 
with  the  American  decisions.  Some  later  cases,  how- 
ever, are  understood  as  establishing  a  different  rnle.'*^ 
These  cases,  we  think,  will,  on  examination,  be  found 
to  go  no  further  than  to  establish  that  money  in  the 
hands  of  a  sheriff,  or  in  other  words,  in  custodia  legis, 
cannot  be  levied  upon  under  either  execution  or  attach- 
ment— a  position  which  is  perfectly  agreeable  to  that 
of  the  American  courts."*® 

There  can  be  no  lawful  levy  upon  moneys  unless  the 
identical  money  levied  upon  is  the  property  of  the  de- 
fendant. It  is  not  sufficient  that  money  be  owing  to 
him,  or  that  he  has  deposited  moneys  with  another, 
who  has  undertaken  to  return  him  an  equal  or  greater 
sum.  In  all  these  cases  the  defendant  does  not  have 
money  to  be  levied  upon.  There  only  exists  in  his  favor 
a  mere  indebtedness.  Thus,  when  money  is  depos- 
ited in  bank,  it  becomes  the  property  of  the  bank,  and 
cannot  be  seized  by  the  sheriff  as  the  money  of  the 

N.  H.  198.  17  Am.  Dec.  412;  Handy  v.  Dolibin.  12  Johns.  220:  The 
King  V.  Webb.  2  Show.  16G;  Kono  v.  Wilson,  1  Hemp.  91;  Russell 
V.  Lawton,  14  W^is.  202.  80  Am.  Dec.  7G9;  Dolby  v.  Mull  ins.  3 
Humph.  437.  39  Am.  Dec.  180;  Green  v.  Palmer.  15  Cal.  411,  7G  Am. 
Dec.  492;  Taylor's  Appeal,  1  Pa.  St.  390;  Harding  v.  Stevenson.  6 
Har.  &  J.  2CA:  Brooks  v.  Thompson,  1  Root,  216;  Doyle  v.  Sleeper, 
1  Dana,  534;  Prentiss  v.  Bliss.  4  Vt.  513,  24  Am.  Dec.  631;  Holmes 
V.  Nuncaster.  12  Johns.  395;  Summers  v.  Caldwell,  2  Nott  &  McC. 
341;  Means  v.  Vance,  1  Bailey.  39;  Noble  v.  Kelly.  40  X.  Y.  415. 

**  Fieklhouse  v.  Croft,  4  East,  510;  Knight  v.  Crid.Ue.  9  East.  48; 
Willows  V.  Gall.  2  Bos.  t^t  P.  376. 

<5By  section  12.  chapter  110,  of  statutes  of  1  ami  2  A'ictoria.  the 
sheriff  may  seize,  nnder  a  fieri  facias,  any  money,  bank  notes, 
checks,  bills  of  exchange,  promissory  notes,  bonds,  specialities,  or 
other  securities  for  moneys.     See  Wood  v.  Wood,  3  Gale  &  D.  532. 


§  112       PEHt;ONAL  PROPERTY  SUBJECT  TO  EXECUTION.  428 

judgment  debtor.^"  If  one  has  deposited  money  with 
another  as  a  special  deposit,  so  that  the  latter  has  no 
right  to  use  it,  and  must  be  deemed  a  bailee  thereof,  we 
see  no  reason  why  it  may  not  be  levied  upon  under  exe- 
cution. A  statute  provided  that  "in  the  case  of  a  debt 
due  to  the  defendant,  or  of  a  deposit  of  money  made  by 
him,  the  same  may  be  attached  and  levied,  in  satisfac- 
tion of  a  judgment."  Where  a  deposit  of  money  had 
been  made  and  the  right  to  seize  it  under  this  statute 
was  claimed,  the  court  said:  "A  deposit,  jn'operly  so 
called,  is  a  naked  bailment,  and  exists  where  one  of  the 
contracting  parties  gives  something  to  the  other  to 
keep,  who  is  to  do  so  gratuitously,  and  obliges  himself 
to  return  it  in  individuo  when  he  shall  be  requested. 
When  one  deposits  money  with  another  for  safe-keep- 
ing, the  latter  to  return,  not  the  sj^ecific  money,  but  an 
equal  sum,  the  transaction  is  also  called  a  deposit,  but 
it  is  an  irregular  deposit.  Now,  the  transaction  be- 
tween Rozelle  and  Tillinghast  was  undoubtedly  a  de- 
posit of  money,  plain  and  simple;  the  money  was  left 
with  Tillinghast  for  safe-keeping,  to  be  returned,  not 
in  money  of  like  amount,  but  in  the  identical  money  de- 
I)osited."     It  was  held  to  be  liable  to  execution.'*'^ 

§  112.     Choses    in    Action.— By    the    common    law 

choses  in  action  were  not  subject   to  seizure  and   sale 

under  execution.     This  common-law  rule  still  prevails, 

u    except  where  it  has  been  changed  by  statute;  ^  but  in 

46  Carroll  v.  Cone.  40  Barb.  220;  McMillan  v.  Richards,  9  Cal. 
30'.  70  Am.  Dec.  G55;  Moorman  v.  Quicli,  20  Ind.  67;  Scott  v.  Smith. 
2  Kan.  428. 

47  Rozelle  V.  Rhodes,  116  Pa.  St.  129,  2  Am.  St.  Rep.  591. 

4«  AVilliams  v.  Reynolds,  7  Ind.  622;  Taylor  v.  Gillean,  23  Tex. 
.^08;  Watkins  v.  Dorsett,  1  Bland.  .530;  Grogan  v.  Cooke.  2  Ball  & 
B.  233;  Totten  v.  McManus.  5  Ind.  407;  Price  v.  Brady.  21  Tex. 
<j14;  Stewart  v.  English,  0  lud.  176;  Smith  v.  K.  &  I'.  R.  R.  Co.,  43 


429  PERSONAL  PUUPKRTY  SUBJECT  TO  EXECUTION.;      §  112 

most  states  provisions  have  been  made  by  statute,  un- 
der which  many  clioses  in  action  may  be  reached  by 
garnisliment,  and  thereby  made  to  contribute  to  the 
satisfaction  of  executions.  It  appears  to  be  indispen- 
sable to  work  a  change  in  the  common-law  rule  upon 
this  subject  that  the  statute  refer  to,  or  otherwise  ne- 
cessarily include,  choses  in  action.  The  statutes  of  Illi- 
nois declare  that  the  personal  property  of  every  defend- 
ant in  a  judgment  before  a  justice  of  the  peace,  not  ex- 
empt from  execution,  shall  be  bound  for  the  payment 
of  such  judgment,  while  the  words  of  command  author- 
ized to  be  inserted  in  the  writ  direct  the  officer  that,  of 
the  goods  and  chattels  of  the  defendant,  he  make  the 
amount  of  the  judgment  and  costs.  In  construing 
this  section,  the  court  held,  (1)  that  the  words  "personal 
property,"  as  used  in  one  clause  of  the  statute,  were  re- 
stricted by  the  other  clause  to  the  words  "goods  and 
chattels,"  and  (2)  that  the  terms  "goods  and  chattels" 
did  not  include  choses  in  action.^** 

In  some  of  the  states,  choses  in  action  may  be  levied 
upon  and  sold  in  the  same  manner  as  other  personal 
estate.^"     It  is,  of  course,  essential  that  the  chose  in 

Me.  547;  McGohee  v  Cherry,  6  Ga.  H.jO;  Ellison  v.  Tuttle,  26  Tex. 
283;  Harding  v.  Stevenson,  0  liar.  &  J.  204;  Denton  v.  Livinsstou, 
9  Johns.  9<;,  G  Am.  Dec.  204;  McClolland  v.  Hul)bard.  2  Blackf.  361; 
McFerran  v.  Jones,  2  Litt.  222;  Johnson  v.  Crawford.  6  Blackf.  377; 
Moore  v.  Pillow,  3  Humph.  4S8;  Humble  v.  Mitchell,  11  Ad.  &  E. 
205;  Nash  v.  Nash,  2  Madd.  133;  Ransom  v.  Miner,  3  Sand.  692; 
Ingalls  V.  Lord,  1  Cow.  240;  Field  v.  DaAvson.  .'.  Pike,  376;  Green- 
wood V.  Spiller.  2  Scam.  504;  People  v.  Auditors,  5  Mich.  223; 
Rhoads  v.  Megonigat.  2  Pa.  St.  30;  Pool  v.  Glover,  2  Ired.  129. 

49  Crawford  v.   Schniitz.  l."0  111.  564. 

60  By  section  688,  California  Code  of  Civil  Procedure,  "all  goods, 
chattels,  moneys,  and  other  property,  both  real  and  personal,  or  any 
interest  therein  of  the  judgment  debtor  not  exempt  by  law',  and  all 
property  and  rights  of  property  seized  and  held  under  attachment 
In  the  action,  are  liable  to  execution.     Shares  and  interests  in  cor- 


S  112       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  430 

action  be  of  a  character  of  which  possession  may  be 
taken  by  the  officer,  and  generally,  that  such  possession 
be  voluntarily  surrendered  to  him  by  the  defendant,  or, 
at  least,  that  it  be  not  taken  by  force.  *^  These  stat- 
utes will  not,  however,  be  construed  as  authorizing  an 
involuntary  transfer  of  that  which  the  judgment  debtor 
could  not  transfer  voluntarily.  Thus  the  vendor  s  lien 
held  by  one  who  has  sold  real  estate  is,  in  some  of  the 
states,  subject,^^  and  in  others  not  subject,  to  volun- 
tary transfer,^^  though  the  indebtedness  secured  by 
such  lien  may  be  assigned.  Hence,  while  such  indebt- 
edness can  be  sold  under  execution  as  a  chose  in  action, 
such  sale  cannot  entitle  the  purchaser  to  the, benefit  of 
the  lien,^*  in  those  states  where  the  voluntary  transfer 
of  such  lien  cannot  be  made.  But  it  seems,  at  least  in 
California,  that  all  kinds  of  choses  in  action  may  be  lev- 
ied upon  and  sold,^^  except  contingent  and  compli- 
cated contracts,  of  which  the  true  amount  and  value 
cannot  be  ascertained. 

poration  or  company,  and  debts  and  credits,  and  all  other  prop- 
erty, both  real  and  personal,  or  any  interest  in  either  real  or  per- 
sonal property,  and  all  other  property  not  capable  of  manual  de- 
livery, may  be  attached  on  execution.  In  like  manner  as  upon  writs 
of  attachment."  A  similar  statute  existed  in  Louisiana.  Sec.  647 
of  Code  of  Practice.  Hence,  in  that  state  a  promissory  note  may  be 
levied  upon  and  sold.  State  v.  Judge,  20  La.  Ann.  589;  Nugent  v. 
McCaffrey,  33  La.  Ann.  271;  Brown  v.  Anderson,  4  Martin,  N.  S. 
416;  W'ilson  v.  Munday,  5  La.  483;  Fluker  v.  Bui  lard,  2  La.  Ann. 
338;  Stockton  v.  Stanbrough,  3  La.  Ann.  390.  Choses  in  action  are 
also  subject  to  levy  and  sale  in  Iowa  (section  3971  of  the  code),  and 
In  Indiana  (Bay  v.  Saulspaugh,  74  Ind.  397). 

61  People  V.  National  M.  I.  Co.,  46  N.  Y.  Supp.  102. 

82  Hunt  V.  Selleck,   118  Mo.  588, 

53  Schnerl)ly  v.  Eagan,  7  Gifl.  &  J.  120.  28  Am.  Dec.  195.  and  note; 
Baum  V.  Grigsby,  21  Cal.  172,  81  Am.  Dec.  153;  Lewis  v.  Covlllaud, 
21  Cal.  178;  Williams  v.  Young,  21  Cal.  227.  The  same  rule  ap- 
plies to  mechanics'  liens:  Lovett  v.  Brown,  40  N.  H.  511. 

54  Ross  V.  Heintzen.  30  Cal.  .313;  Bray  v.  Booker.  6  N.  D.  526. 

55  Davis  V.  Mitchell,  34  Cal.  87;  Adams  v.  Hackett,  7  Cal.  187. 


431  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  112 

When  personal  property  is  held  adversely  to  its 
owner,  his  interest  therein  is  a  mere  cho«e  in  action, 
and  cannot  be  reached  by  execution, ^^  unless  by  virtue 
of  the  provisions  of  some  statute.  By  this  we  under- 
stand that  the  officer  having  a  writ  against  one  per- 
son has  no  right  to  forcibly  take  property  from  the  pos- 
session of  another  who  claims  it  adversely  to  the 
former,  nor  can  the  ofiQcer  levy  without  taking  such 
possession,  for  he  is  required  to  have  personal  property 
present  at  any  sale  he  may  make  thereof.  It  is,  there- 
fore, a  sufficient  answer  for  an  otlicer  sued  for  not  levy- 
ing on  property  for  him  to  show  that  it  was  in  pos^ses- 
sion  of  a  stranger  to  the  writ  who  claimed  title  thereto 
adversely  and  in  good  faith.  If,  however,  the  officer 
should  levy  upon  and  sell,  we  do  not  understand  that 
the  defendant  in  the  writ  can  avoid  the  levy  or  sale  on 
the  ground  that,  prior  to  the  levy,  the  property  was 
held  adversely  to  him.^'' 

There  are  many  choses  in  action,  which,  from  their 
intangible  character,  seem  to  be  incapable*  of  being 
made  the  subjects  of  direct  levy  and  sale.  Of  this 
character  are  all  debts  and  credits  not  evidenced  by 
writing,  or  by  something  capable  of  being  seized  and 
taken  into  possession,or  in  some  manner  made  to  bear 
witness  to  a  change  in  their  ownership.  A  chose  in 
action  evidenced  by  a  book-account  is  also  of  this  char- . 
acter.  The  account  book  is  not  so  intimately  connected 
with  the  demands  charged  therein,  that  the  seizure  of 
the  book  is  equivalent  to  the  seizure  of  the  demands. 
There  is  no  means   by  which   these   demands   can  be 

68  Commonwealth  v.  Abell,  r>  T.  J.  Marsh.  470:  Thomns  v.  Thomas. 
2  A.  K.  Marfsh.  430;  Wier  v.  Davis,  4  Ala.  442:  Carlos  v.  Ansley.  8 
Ala.  900:  Horton  v.  Smith.  8  Ala.  7X  42  Am.  Dec.  G28. 

B7  State  V.  Judge,  48  I.a.  Ann.  GG7. 


§  Il-J   PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     4Si 

transferred  by  a  diroct  \o\y  and  sale.  ^*^  Speaking  of 
an  effort  to  snstain  a  levy  upon  certain  boolcs  contain- 
ing accounts  and  other  evidences  of  indebtedness,  the 
court  said:  "These  books  of  account  and  trial  balances 
are  not  property-  of  such  tangible  character  that  they 
can  be  made  subject  to  such  levies.  They  may  be  evi- 
dences of  debt,  but  their  seizure  is  not  the  attaching  or 
seizure  of  the  debt  itself.  They  are  not  so  intimately 
connected  with  the  demands  charged  therein  that  the 
seizure  of  the  books  is  equivalent  to  the  seizure  of  the 
demands,  and  there  is  no  means  by  which  these  de- 
mands can  be  transferred  by  a  direct  levy  and  sale."  ^^ 
They  must  be  reached  by  garnishment,  trustee  process, 
or  proceedings  supplemental  to  or  in  aid  of  execu- 
tion.'"' 

A  judgment  may  be  subjected  to  execution  as  a  credit 
or  chose  in  action  in  most  of  the  states  in  which  choises 
in  action  may  be  subjected  to  execution.  The  mode 
of  levying  upon  a  judgment,  and  of  applying  it  toward 
the  satisfaction  of  the  writ,  is  a  matter  of  some  diffi- 
culty. Tha.t  it  is  property  is  everywhere  conceded. 
But  though  it  is  evidenced  by  some  writing  or  matter  of 
record,  such  writing  or  record  is  not  the  judgment,  but 
only  evidence  thereof.  It  would  be  impossible  to  seize 
the  judgment,  for  it  is  intangible,  and  it  is  improper 
to  seize  the  evidence  of  it,  for  that  should  remain  in  the 
custody  of  some  public  officer.  In  this  dilemma,  the 
major  portion  of  the  courts  considering  the  question 
have  concluded  that  a  judgment  cannot  be  levied  upon 

68  Clark  V.  Warren,  7  Lans.  ISO;  Brower  v.  Smith.  17  Wis.  410. 

•".0  Rosonthal  v.  Muskegon  Circuit  Judge,  98  Mich.  208.  39  Am. 
St.  Rep.  .53.5. 

CO  Brisco  r.  Askoy.  12  Ind.  CCCr.  Chandlpv  v.  Koaton.  17  Tnd.  215; 
Chandler  v.  Davis,  17  lud.  2G2;  Lake  Erie  R.  R.  Co.  v.  Eckler.  13 
Ind.  67. 


433  PERSONAL  PROPERTY  SUBJECT  TO  EXlXL'TiON.        §  112 

nor  sold,  and  can  be  subjected  to  gariiisliiiicnt   only.^* 
In  Louisiana,  a  jud^nienl  may  be  reached  by  j^aruish- 
ment,"-  or  seized  and  sold  under  execution;*'^  while 
in  Oregon   it  is    not  a  subject   of   garnishment/''*  but 
whether  of  levy  and  sale  the  decisions  do  not  state. 
The  objection  urged  in  this  state  against    permitting 
the  garnishment  of  a  judgment  is  that,  to  render  the 
garnishment  ellVctive,  it  may  be  necessary  to  proceed 
to  judgment  against  the  garnishee,  and  that  there  will 
then  be  two  judgments  against  him  in  favor  of  differ- 
ent persons,  based  upon  the  same  debt.     In  Minnesota, 
the  statutes  include,  in  the  list  of  property  subject  to 
execution,  "bills,  notes,  book  accounts,  debts,  credits, 
and  other  evidence  of  indebtedness,"  and  declare  that 
the  assignment  of  a  judgment  shall  have  no  effect  as 
against  creditors  levying  upon  and  attaching  the  same, 
unless  such  assignment  shall  be  filed  as  prescribed, 
and  that  judgments  recovered  for  the  seizure  of  exempt 
property  shall  be  exempt  from  attachment,  execution, 
or  other  proceedings.     These  provisions,  in  the  opinion 
of  the  courts  of  that  state,  amply  evince  the  legislative 
intent  to  subject  judgments  to  execution  by  levy  and 
sale.*"^     A  similar    conclusion  was  reached    in    South 
Dakota,  but  the  statutes  of  that  state  are  so  explicit 

«i  INIcBrkle  v.  Fallon,  Go  Cal.  301;  Wilson  v.  Matheson.  17  Fla. 
630;  Dore  v.  Donshorty.  72  Cal.  232,  1  Am  St.  Rep.  48;  Latham  v. 
Blake,  77  Cal.  G4G;  Osborn  v.  Cloud,  23  Iowa,  104,  92  Am  Dec.  413. 
The  rule  has  been  changed  in  Iowa  by  section  3971  of  the  code.  In 
Colorado  a  judgment  is  not  subject  to  execution  except  on  a  writ 
issued  out  of  the  court  wherein  it  was  rendered:  Ilamill  v.  Peck, 
11  Colo.  App.  1. 

82  Ilanna  v,  Bry,  5  La.  Ann.  Gol,  52  Am.  Dec.  GOG;  Righter  v. 
Slidoll,  9  La.  Ann.  602. 

63  Safford  v.  Maxwell,  23  La.  Ann.  34.5. 

»■-»  Despain  v.  Crow.  14  Or.  404:  Norton  v.  Winter,  1  Or.  47. 

«B  Henry  v.  Trayuor,  42  ^liun.  234. 
Vol.  I.-28 


§  112       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  434 

upon  the  subject  that  it  is  difficult  to  conceive  a  doubt 
that  a  levy  upon  and  sale  of  judgments  are  authorized 
thereby.^"^ 

The  Code  of  Civil  Procedure  of  New  York  authorizes 
a  levy  to  be  made  upon  personal  property,  including  a 
bond,  promissory  note,  or  other  instrument  for  the  pay- 
ment of  money  by  taking  the  same  into  the  actual  cus- 
tody of  the  officer.  It  has  been  held,  however,  that 
the  terms  "instrument  for  the  payment  of  money"  em- 
ployed in  this  statute  mean  only  those  writings  made 
primarily  for  the  x^ayment  of  money,  commonly  trans- 
ferable by  delivery  or  endorsement,  and  usually  dealt 
with  "like  other  tangible  properly,"  and  hence  do  not 
include  a  life  insurance  policy  which  has  not  matured 
and  on  which  premiums  are  still  to  be  paid,*^*^  and 
probably  it  is  not  material  whether  the  policy  has  ma- 
tured or  further  premiums  are  to  be  paid  or  not.**** 
Hence,  while  these  instruments  and  the  rights  depend- 
ent upon  them  may  be  subject  to  execution,  the  officer 
need  not  take  them  into  his  custody. 

A  statute  purporting  to  authorize  the  levy  of  an  exe- 
cution upon  a  bond  or  other  instrument  for  the  pay- 
ment of  money  executed,  and  which  was  issued,  by  the 
governor,  state,  county,  public  officer,  or  municipal  cor- 
poration, and  is  in  terms  negotiable  and  payable  to  the 
bearer  or  holder,  does  not  warrant  a  levy  of  the  writ 
upon  a  liquor  tax  certificate,  though  such  certificate 
has  a  surrender  value  to  which  the  holder  may  become 
entitled  upon  offering  to  surrender  it.  ** 

66  McLaughlin  v.  Aloxanrter,  2  S.  D.  220. 

67  Kratzenstein  v.  Lehman,  46  N.  Y.  Supp.  71. 

68  Trepagnier  v.  Piose,  4G  N.  Y.   Supp.  397;  contra,  Hankison  v. 
Page,  19  Abb.  N.  C.  274. 

«»  McNeely  v.  Welz,  47  N.  Y.  Supp.  310. 


435  PERSONAL  rROPEKTY  SUIUECT  TO  KXKCfTlON.      §   112a 

§  112  a.     Shares    or    Interests    in    a    Corporation, 

wlirllicr  represented  by  cerlilicaLes  (*[  stock  or  not, 
wore,  by  the  common  law,  deemed  to  be  mere  choses  in 
action,  and  iience  were  included  in  the  j^cik  ral  rule  ex- 
empting from  execution  all  that  class  of  property.''" 
Even  where  they  were  subject  to  execution,  the  transfer 
of  title  by  a  sale  thereunder  could  not  give  the  pur- 
chaser any  definite  or  undivided  interest  in  the  assets 
of  the  corporation,  but  could  only  substitute  him  in 
place  of  the  defendant  in  execution,  and  give  him  the 
same  rights  and  remedies  to  which  such  defendant  was 
entitled/^  Statutes  in  a  majority  of  the  states  have 
made  property  of  this  class  subject  to  execution  in 
some  mode/^  But  to  ascertain  whether  it  is  so  sub- 
ject, and  in  what  manner  a  judgment  creditor  must 
proceed,  the  statutes  of  the  state  in  which  the  question 
arises  must  be  consulted. 

The  situs  of  stock  for  the  purpose  of  attachment  or 
execution  is  at  the  domicile  of  the  corporation.  There- 
fore, unless,  perhaps,  in  a  case  where  a  corporation  has 
been,  in  effect,  so  admitted  into,  or  adopted,  in  a  state 
other  than  that  of  its  creation,  that  it  may  be  deemed  to 
have  become  a  resident  of  both  states,  a  levy  of  an  exe- 
cution upon  shares  or  interests  of  the  defendant  in  a 
corporation  can  be  made  only  in  the  state  wherein  the 
corporation  was  organized  and  of  which  it  remains  a 

70  Denton  v.  Liviusston,  9  Johns.  96,  6  Am.  Dec.  2G4;  Williamson 
V.  Smoot,  7  Mart.  (O.  S.)  31,  12  Am.  Dec.  494;  Rhea  v  Powell.  24 
111.  App.  77;  Nabrinjr  v.  Bank  of  Mobile,  58  Ala.  204;  Van  Norman 
V.  .Taclvson  County,  48  Mich.  204;  Foster  v.  Potter,  37  Mo.  525; 
Cooper  V.  Canal  Co..  2  Murph.  195. 

71  Princeton  M.  Co.  v.  First  N.  B.,  7  Mont.  530. 

"2  Berney  N.  B.  v.  Pinckanl.  87  Ala.  577;  Trimble  v.  Van(le2:riff, 
7  IToust.  451;  Memphis  etc.  Co.  v.  Poke,  9  Heisk.  097;  Younu:  v. 
Sontli  etc.  Co..  85  Tenn.  189.  4  Am.  St.  Rep.  752;  Tufts  v.  Vnlkening, 
122  Mo.  631;  Cook  on  Stock  and   StockhoUlors.  section  482. 


§  112a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  43& 

resident.''^  In  a  case  arising  in  Tennessee,  it  appeared 
that  the  corporation  upon  whose  stock  a  levy  was 
sought  to  be  made  had  been  organized  in  the  state  of 
Missouri,  but  to  carry  on  business  in  the  state  of  Ten- 
nessee, and  its  charter  provided  that  it  should  have  two 
oflSces,  one,  called  the  home  oflflce,  in  St.  Louis,  Mis- 
souri, and  the  other  at  Chattanooga,  Tennessee.  The 
laws  of  Tennessee  provided  that  every  corporation  cre- 
ated by  the  laws  of  another  state,  for  the  purpose  of  car- 
rying on  certain  businesses  specified  therein  and  desir- 
ing to  carry  on  business  in  the  state  of  Tennessee, might 
file  with  the  secretary  of  state  a  copy  of  its  charter  and 
cause  an  abstract  of  the  same  to  be  registered  in  the 
county  in  which  it  proposed  to  engage  in  business,  and 
that  corporations  complying  with  the  statute  should 
be  deemed  to  be  corporations  of  the  state  and  subject 
to  its  jurisdiction.  It  did  not  appear  whether  the  cor- 
poration in  question  had  complied  with  these  laws  or 
not.  It  had,  however,  carried  on  business  in  Tennessee, 
and  its  by-laws  declared  its  office  to  be  in  Chattanooga, 
where  its  books  were  required  to  be  kept,  its  elections 
to  take  place,  and  its  directory  to  meet.  Its  whole  tan- 
gible property  was  in  Tennessee.  Its  stockbook  had 
however,  been  removed  from  that  state.  The  court 
held  that,  in  view  of  all  these  facts,  it  must  presume 
that  the  corporation  had  filed  its  charter  with  the  sec- 
retary of  state,  and  was  lawfully  exercising  its  facul- 
ties within  the  state  under  legislative  permission,  and 
that,  while  a  foreign  corporation  in  one  sense,  it  was 
yet,  by  legislative  power,  a  domestic  cor])oration,  and 

73  Winston  v.  Fletcher,  53  Conu.  390,  'lo  Am.  Rep.  122;  Plimpton 
V.  Bigelow,  93  N.  Y.  592;  Ireland  v.  Globe  Mill  etc.  Co.,  19  R.  I. 
180,  61  Am.  St.  Rep.  756;  Pinney  v.^Nevills,  86  Fed.  Rep.  97;  Youni? 
V.  Soutli  Tredegar  I.  Co.,  85  Tenn.  189,  4  Am.  St.  Rep.  752. 


437  PERSONAL  PUOPEUTY  SUBJECT  TO  EXECUTION.      §  llJa 

that  the  situs  of  its  stock  was  tlierefore  in  Teunesisee, 
so  as  to  be  subject  to  attaclimeut  like  tlie  stock  of  a  cor- 
poration originally  created  by  that  state/"* 

A  statute  of  a  state  purporting  to  authorize  a  levy 
upon  shares  of  stoclc  in  corporations  is  applicable  to  cor- 
porations organized  under  the  laws  of  the  United 
Ktates,  where  such  statute  does  not  tend  to  impair  the 
power  of  the  United  States  to  i)rovide  for,  control,  and 
regulate  such  corporations.'^ 

Certificates  of  stock  are  merely  evidences  of  the  inter- 
ests of  the  holder  thereof  in  the  corporation.  The  levy 
of  an  execution  thereon  by  taking  such  certificates  into 
the  possession  of  the  officer  is  not  usually  authorized, 
add,  when  not  so  expressly  authorized,  is  unavailing.'^" 
Statutes  purporting  to  authorize  the  levy  upon  shares 
or  interests  in  a  corporation  will  usually  be  construed 
as  referring  only  to  shares  or  interests  having  a  com- 
mercial value.  Hence,  it  was  held  that  where  a  cor- 
poration was  organized,  not  to  carry  on  a  business  for 
profit,  but  only  for  the  purpose  of  "yachting,  hunting, 
fishing,  rowing,  or  other  lawful  sporting  purposes,"  it 
was  not  of  a  class  the  stock  of  which  the  legislature  in- 
tended to  make  subject  to  execution,  under  a  statute 
declaring  that  ''any  share  or  interest  of  a  stockholder 
in  any  bank,  insurance  company,  or  other  joint  stock 
company  that  is,  or  may  be,  incorporated  under  the  au- 
thority of,  or  authorized  to  be  created  by,  any  law  of 
this  state,  may  be  taken  in  execution."  '''' 

T*  Young  V.  South  Tredejiar  I.  Co.,  85  Tonn.  189,  4  Am.  St.  Rep. 
752. 

T'  Oldacre  v.  Butlor.   IIG  Ala.  G.'2;  Re  Braden's  Estate.   165   Pa. 
St.  184. 

'<*  Young  V.  South  Tredesrar  I.  Co.,  85  Tenn.  189,  4  Am.  St.  Rep. 
752. 

7T  Lyou  V.  Denison,  SO  Mich.  371. 


§  113       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  43S 

Ml 3.  Crops,  Whether  Growing  or  Standing  in  the 
Field  ready  to  be  harvested,  are,  when  produced  by  an- 
nual cultivation,  no  part  of  the  realty.  They  are,  there- 
fore, liable  to  voluntary  transfer  as  chattels.'"^  It  i  s 
equally  well  settled  that  they  may  be  seized  and  sold 
under  execution.'^  While  there  is  no  dissent  from  the 
proposition  that  growing  crops  ar;'  subject  to  execution, 
the  time  when  they  become  so  subject  is  in  controversy. 
In  some  of  the  states,  acting,  doubtless,  upon  the  as- 
sumption that,  until  they  are  in  a  condition  to  become 
a  subject  of  commerce,  they  must  be  regarded  as  part 
of  the  realty  on  which  they  are  growing  and  from  which 
they  cannot  be  severed  without  their  destruction,  or, 

78  Harris  v.  Frink,  49  N.  Y.  24,  10  Am.  Kep.  318;  Graff  v.  Fitch, 
56  III.  373,  11  Am.  Kep.  85;  Whipple  v.  Foot,  2  Johns.  418,  3  Am. 
Dec.  442;  Cratldock  v.  Riddlesbarger,  2  Dana,  205;  Matlock  v.  Fry, 
15  lud.  4S3;  Evans  v.  Roberts,  5  Barn.  &  C.  829;  Pourrier  v.  Ray- 
mond, 1  Hann.  512;  Farker  v.  Staniland.  11  East,  362;  Austin  v. 
Sawyer,  9  Cow.  39;  .Jones  v,  Flint,  10  Ad.  &  E.  753;  Poulter  v. 
Killingbeck,  1  Bos.  &  P.  398;  Mumford  v.  W^hitney,  15  Wend.  387, 
30  Am.  Dec.  GO;  Westbrook  v.  Eager,  1  Harr.  (N.  J.)  81;  Purner  v. 
Piercy,  40  Md.  212.  It  is  immaterial  whether  the  growing  crop  be 
such  as  can  be  severed,  like  corn  or  wheat,  or  such  as  must  be  dug 
out  of  the  gi'ound.  as  turnips  or  potatoes.  Dunne  v.  Ferguson, 
Hayes.  542;  Sainsbury  v.  Matthews,  4  Mees.  &  W.  343;  Warick  v. 
Bruce.  2  Maule  &  S.  205.  Some  of  the  English  decisions,  however, 
deny  that  crops  are  personal  property,  and  affirm  that  they  cannot 
be  transferred  except  as  real  estate.  Emmerson  v.  Heelis,  2  Taunt. 
38;  Earl  of  Falmoutli  v.  Thomas.  1  Cromp.  &  M.  89;  3  Tyrw.  963. 

79  Northern  v.  State,  1  Ind.  113;  Hartwell  v.  Bissell,  17  Johns.  12S; 
Coombs  V.  Jordan.  3  Bland,  312,  22  Am.  Dec.  236;  Casilly  v.  Rhodes, 
12  Ohio,  88;  I'arham  v.  a'hompson,  2  J.  J.  Marsh.  159;  Peacock  v. 
Purvis,  2  Brod.  &  B.  362;  Bloom  v.  Welsh,  3  Dutch.  178;  Crine  v. 
Tifts,  65  Ga.  f)44;  Thompson  v.  Craigmyle,  4  B.  Mon.  .391,  41  Am. 
Dec.  240;  Preston  v.  Ryan,  45  Mich.  174;  Throop  v.  Maiden,  52  Kan. 
2.58;  Polley  v.  Johnson,  52  Kan.  478;  Erickson  v.  Paterson,  47  Minn. 
.525;  Johnson  v.  Walker,  25  Neb.  736;  Sims  v.  Jones.  .54  Neb.  7(!9:  Ed- 
wards V.  Thompson,  85  Tenn.  720,  4  Am.  St.  Rep.  807;  contra,  Norris 
V.  Watson,  22  N.  H.  364,  55  Am.  Dec.  160. 


430  TEKSONAL  PROPERTY  SUIiJECT  TO  EXECUTION.        §  lib 

at  least,  their  diminution  in  value,  it  has  been  held 
that  it  is  only  when  they  have  been  reaped,  or  are  fit 
to  be  severed  from  the  soil,  that  they  can  be  deemed 
personal  property,  and  subject  to  levy  and  sale  as 
Buch.**"  In  some  of  the  other  states  the  legislature  has 
interposed  by  restricting  their  levy,'^*  or  their  sale,**^ 
to  tiie  time  Avhen  they  have  actually  matured,  or  when 
it  is  assumed  that  they  will  be  so. 

"Various  growing  vegetables,  termed  in  law  emble- 
ments, and,  properly  speaking,  the  profits  of  sown  land, 
but  extended  in  law  not  only  to  growing  crops  of  corn, 
but  to  roots  planted,  and  other  annual  artificial  profit, 
are  deemed  personal  property,  and  pass  as  such  to  the 
executor  or  administrator  of  the  occupier,  if  he  die  be- 
fore he  has  actually  cut,  reaped,  or  gathered  the  same. 
All  vegetable  productions  are  so  classed  when  they  are 
raised  annually  by  labor  and  manure,  which  are  con- 
siderations of  a  personal  nature.  At  common  law, 
fructus  industriales,  as  growing  corn  and  other  annual 
produce  which  w^ould  go  to  the  executor  upon  death, 
may  be  taken  in  execution."  *^  "We  have  no  doubt 
that  corn,  or  any  other  product  of  the  soil  raised  an- 
nually by  labor  and  cultivation,  is  personal  estate.  It 
is,  tlierefore.  liable  to  be  seized  on  execution,  and  may 
be  sold  as  other  personal  estate."  *'*     A  growing  crop, 

80  EHitborpe  v.  Reidesil.  71  Ga.  315;  Burleigh  v.  Piper,  51  la.  &49; 
Heard  v.  Fairbauks,  5  Met.  111.  38  Am.  Dec.  394;  Penhallow  v. 
Dwight.  7  Mass.  VA,  5  Am.  Doc.  21. 

«i  Farmers'  Bank  v.  Morris,  79  Ky.  157;  Edwards  v.  Thompson. 
85  Tenn.  720,  4  Am.  St.  Rep.  S07. 

S2  Gillett  V.  Truax,  27  IMinn.  528;  Rosier  v.  Cornolison,  98  X.  C. 
SS3. 

83  SuiiTIi  V.  Tritt.  1  Dev.  &  B.  241,  28  Am.  Dec.  .505;  Poole's  Case. 
1  Salk.  3t«;  Scorell  v.  Boxall,  1  YoxmRe  &  J.  398;  Shanuon  v.  Jones, 
12  Trod.  200. 

6*  Penhallow  v.  Dwight,  7  Mass.  35,  5  Am.  Dec.  21. 


§  113       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  440 

raised  annually  by  labor  and  cultivation,  is,  as  respects 
an  execution  against  the  owner,  a  mere  chattel,  and 
subject  as  such  to  be  taken  and  sold.  A  purchaser, 
on  such  sale,  acquires  the  rights  and  interests  of  the 
defendant  in  execution  to  the  crop,  with  the  right  of 
ingress,  egress,  and  regress,  for  the  purpose  of  gather- 
ing and  carrying  it  away.**^  When  a  product  of  the 
soil  is  claimed  not  to  be  subject  to  seizure  and  sale 
under  a  fieri  facias,  the  claim  must  be  determined  by 
ascertaining  whether  such  product  is  real  or  personal 
estate;  and  this  last  question  is,  in  turn,  to  be  settled 
by  inquiring  w^hether  the  product  is  chiefly  the  result 
of  roots  permanently  attached  to  the  soil,  or  of  the 
labor  and  skill  of  the  defendant  in  sowing  and  culti- 
vating the  soil. 

The  decisions  holding  certain  crops  to  be  personal 
estate,  and  therefore  subject  to  execution,  have  gener- 
ally embraced  nothing  beyond  those  crops  which,  being 
sown  or  planted,  are  capable  of  reaching  perfection 
within  one  year.  But  we  think  a  crop  which  could  not 
reach  perfection  in  less  than  tw^o  or  three  years  w  ould 
also  be  personal  property,  if  its  growth  must  be  re- 
garded as  chiefly  attributable  to  the  skill  and  labor  of 
the  owner.  We  think,  too,  that  the  purpose  for  which 
the  product  is  cultivated  may  be  taken  into  considera- 
tion in  determining  its  character  as  real  or  personal 

85  Shepard  v.  Philbrick,  2  Denio,  175;  Stewart  v.  Doughty.  9 
.Tohns.  108.  At  an  early  date,  in  Alabama,  an  execution  could  not  be 
levied  on  a  fn"owing  or  unfathered  crop.  Adams  v.  Tanner.  .^)  Ala. 
740;  Evans  v.  Lamar,  21  Ala.  33.3.  At  a  later  period  the  common- 
law  rule  prevailed:  McKenzie  v.  Lampley,  31  Ala.  .526.  At  present, 
growing  and  ungathered  crops  are  exempt  from  execution:  Code  of 
Ala.,  sec.  2893.  Statutes  have  also  been  enacted  in  Kentucky.  Michi- 
gan, and  Tennessee,  providing  when  crops  may  be  taken  in  exe- 
cution. 


441  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  113 

estate.  Thus  fruit-trees,  planted  in  an  orchard  to 
permanently  enhance  the  value  of  the  real  estate,  ought 
to  be  regarded  in  a  very  difierent  light  from  trees  grow- 
ing in  a  nurseiy  for  llic  purposes  of  sale,  and  which  the 
owner  treats  as  merchandise,  to  be  sold  to  whomsoever 
may  apply.****  But  the  general  rule  undoubtedly  is, 
that  "growing  trees,  fruit,  or  grass,  the  natural  produce 
of  the  earth,  and  not  annual  productions  raised  by  the 
manurance  and  industry  of  man,  arc  parcel  of  the  land 
itself,  and  not  chattels."  •**'  The  fact  that  a  crop  is 
produced  by  perennial  roots  is  by  no  means  conclusive 
that  it  is  to  be  ranked  as  real  estate.  The  true  test  is, 
whether  the  crop  is  produced  chiefly  by  the  manurance 
and  industry  of  the  owner.  Thus  hop  roots  are  peren- 
nial, and,  unlike  potatoes,  are  regarded  as  real  estate; 
but  the  crop  grown  from  such  roots,  being  almost  en- 
tirely dependent  for  its  value  on  manurance  and  indus- 
try, is  personal  estate.*^*  Hops  growing  and  maturing 
on  the  vines  may  therefore  be  levied  upon  and  sold  un- 
der execution.**'** 

A  question  of  considerable  importance  and  one  not 
so  frequently  decided  nor  so  well  discussed  as  to  en- 
able us  to  answer  it  with  confidence  is,  whether  fniit 
growing  upon  trees,  which  confessedly  constitute  a  part 

R<">  Miller  v.  BakiT,  1  Met    27;  Whitmarsli  v.  Walkor,  1  Met.  31.">. 

ST  (Jreon  v.  Armstronp;,  1  Denio,  d')G:  Toal  v.  Auty,  2  Brod.  «&  li. 
99;  Sloeiim  v.  Seymour,  3C-  X.  J.  L.  138;  Crosby  v.  Wailsworth.  G 
East.  002:  Rodwell  v.  IMiillips.  9  ^fees.  &  W.  501;  I'utney  v.  D:iy. 
6  N.  H.  430.  25  Am.  Dec.  470;  Olnistead  v.  Niles,  7  N.  H.  .a22;  Bank 
of  I.ansingfburgh  v.  Crary.  1  Barb.  542;  Adams  v.  Smith.  Bveese, 
283. 

8«  Latham  v.  Atwood.  Cro.  Car.  olri;  Auonymous  Case.  Freem.  Ch. 
210;  Fisher  v.  Forbes,  referred  to  9  Vin.  Abr.  373,  pi.  S2.  See  also 
Evans  v.  Roberts,  .5  Barn.  &  C.  829:  Craves  v.  Weld,  5  Barn.  & 
Adol.  105. 

8»  Frank  v.  Harrington.  30  Barb.  415. 


§  113       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  442 

of  the  realty,  is,  before  its  severance  therefrom,  subject 
to  execution  as  personal  property.  The  trees  them- 
selves are  permanent  accessions  to  the  realty,  and,  in 
an  age  when  they  bore  their  fruit  without  much  aid 
from  the  industry  of  man,  there  might  be  but  little 
doubt  that  such  fruit  was  not,  prior  to  its  severance, 
personal  property,  or  subject  to  execution  as  such,  ^^ 
nor  have  we  discovered  any  decision  directly  affirm- 
ing that  the  common-law  rule  upon  the  subject  has 
been  modified  or  rendered  inapplicable  by  the  change 
which  has  taken  place  in  the  modes  of  cultivation. 
When,  however,  it  has  been  claimed  that  such  fruit  was 
real  property,  and  therefore  that  all  contracts  for  its 
sale  while  remaining  on  the  trees  were  within  the  stat- 
ute of  frauds,  and  must  be  evidenced  by  a  contract  or 
memorandum  of  sale,  in  writing,  sufficient  to  sat- 
isfy that  statute,  when  a  sale  of  land  was  in  ques- 
tion, the  claim  has,  by  the  modern  authorities,  been 
denied  with  respect  to  apples,  peaches  and  fruits 
of  like  character,  to  the  successful  production 
of  which  for  the  market  the  labor  of  man  is  re- 
garded as  having  a  prominent  part.'*^  Where  these 
views  prevail,  and  fruits  of  this  character  may,  there- 
fore, be  dealt  with  by  their  owner  as  personal  property, 
we  see  no  reason  why  they  may  not  as  such  be  subject 
to  execution  against  him,  and  yet,  as  we  have  already 
stated,  we  have  not  found  any  decision  decLaring  such 
to  be  the  case.  Blackberries  growing  upon  bushes 
have  been  held  not  subject  to  execution  either  bv  the 
rules  of  the  common  law  or  under  any  statute  author- 
izing the  levying  upon  and  selling  of  growing  crops; 

00  Roo  V.  Commell,  1  Houst.  9. 

91  Yulifcvicli  V.  Skiiinor,  77  Cal.  2.30:  Pnrner  v.  Pioroy,  40  Md.  212. 
17  Am.  lU'iJ.  501,  Smock  v.  Smock,  37  Mo.  App.  50. 


443  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  113 

and  the  court  i)roposed  the  following  test  to  aid  in  the 
determination  of  the  question,  whether  any  given  fruit 
or  crop  was  personal  property,  and,  as  sucli,  subject  to 
sale  under  execution:  "It  is  sometimes  stated  that  the 
test  whether  the  unsevered  product  of  the  soil  is  an  em- 
blement, and  as  such,  personal  property,  is  whether  it 
is  produced  chiefly  by  the  manurance  and  industry  of 
the  owner;  but  while  this  test  is  correct  as  far  as  it  goea, 
it  is  incomplete.  Under  modern  improved  methods  all 
fruits  are  cultivated,  the  quality  and  quantity  of  the 
yield  depending  more  or  less  upon  the  annual  expendi- 
ture of  labor  upon  the  trees,  bushes,  or  vines;  but  it 
has  never  been  held  that  fruit  growing  upon  cultivated 
trees  was  subject  to  levy  as  personal  property.  No 
doubt  all  emblements  are  produced  by  the  manurance 
and  labor  of  the  owner,  and  are  called  'fructus  industri- 
ales'  for  that  reason;  but  the  manner,  as  well  as  pur- 
pose, of  planting  is  an  essential  element  to  be  taken 
into  consideration.  If  the  purpose  of  planting  is  not 
the  pennanent  enhancement  of  the  land  itself,  but 
merely  to  secure  a  single  crop,  which  is  to  be  the  sole 
return  for  the  labor  expended,  the  product  would  natu- 
rally fall  under  the  head  of  'emblements.'  On  the 
other  hand,  if  the  tree,  bush  or  vine  is  one  which  re- 
quires to  be  planted  but  once,  and  will  then  bear  suc- 
cessive crops  for  years,  the  planting  would  be  naturally 
calculated  to  permanently  enhance  the  value  of  the 
land  itself,  and  the  product  of  any  one  year  could  not 
be  said  to  essentially  owe  its  existence  to  labor  ex- 
pended during  that  year;  and  hence  it  would  be  classed 
among  'fructus  naturales,'  and  the  right  of  emblements 
would   not   attach.""    This  classification  is,  of  course, 

»2  Darliugton  on  Personal  Property,  26. 


S  113        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  444 

more  or  less  arbitrary,  but  it  is  tlie  one  uniformly 
adopted  by  the  courts,  unless  hops  be  an  exception, 
and  it  is  the  only  one  which  will  furnish  a  definite  and 
exact  rule.  Blackberry  bushes  are  perennial,  and  when 
planted  once  yield  successive  crops.  They  grow  wild, 
but,  like  every  other  kind  of  fruit  or  berry,  are  improved 
by  cultivation.  The  quantity  and  quality  of  the  yield 
is  largely  dependent  ux^on  the  amount  of  annual  care 
expended  upon  them,  but  the  difference  in  that  respect 
between  them  and  other  fruits  is  only  one  of  degree.  It 
seems  to  us  quite  clear  that,  at  common  law,  such  ber- 
ries, while  growing  upon  the  bushes,  were  not  subject 
to  levy  on  execution  as  personal  property,  and  we 
have  no  statute  changing  the  rule.  Evidently  the  main 
purpose  of  1878  Gen.  Stats.,  c.  66,  sec.  315,  was,  while 
permitting  immature  growing  crops  to  be  levied  on,  to 
prohibit  their  sale  until  they  were  ripe  and  fit  to  be 
harvested."  "^ 

Some  classes  of  property,  which,  under  ordinary  cir- 
cumstances, would  be  regarded  as  real  estate,  may, 
under  peculiar  circumstances,  acquire  or  retain  the 
character  of  personal  estate.  Thus,  a  building  or 
fence  placed  on  lands  by  a  tenant  may,  by  agreement 
between  him  and  his  landlord,  retain  its  character  of 
personalty.'^^  So  the  owner  of  land  may,  by  a  trans- 
fer in  writing,  sell  the  trees  thereon,  and  thus  separate 
them  from  the  realty.  Or  grass  or  trees  may  belong 
to  a  tenant  according  to  the  terms  of  his  lease.  In 
such  cnse.  they  nre  personal  property,  and  liable  to  be 
seized    and    sold    under   an    execution    against    their 

»3  Sparrow  v.  Tond.  49  Minn.  412.  P,2  Arn.  St.  Rop-  •">"'l. 
94  Sheldon  v.  Edwards.  35  N.  Y.  279;  Ford  v.  Cobb,  20  N.  Y,  344; 
Smith  V.  Benson,  1  Hill,  176. 


il5  PERSONAL  rilOl'EUTY  SUBJECT  TO  EXECUTION.        §  113 

owner.^-'  It  seems  to  be  conceded  that  where  lands  are 
leased  to  a  professional  yaideucr  or  nurseryman,  for- 
the  purpose  of  carrying  on  his  trade,  the  shrubs,  trees, 
and  flowers  which  he  may  plant  and  have  growing  on 
such  lands  are  regarded  as  trade  fixtures.  They  are, 
therefore,  during  the  continuance,  of  his  term,  to  be 
treated  as  personal  property."*  In  Louisiana,  a  grow- 
ing crop  is  regarded  as  part  of  the  realty  when  it  be- 
longs to  the  owner  of  the  land;  but  when  the  property 
of  a  lessee,  it  is  a  mere  chattel,  and  is  subject  to  execu- 
tion as  such.'^'^ 

Where  a  mortgage  is  given  upon  real  estate  it  does 
not  affect  the  right  of  the  mortgagor  to  deal  with  the 
crops  growing  thereon  as  personal  property.  He  may 
transfer  or  encumber  them  either  voluntarily  or  invol- 
untarily. If  they  are  seized  upon  execution,  the  rights 
of  the  seizing  creditor  become  paramount  to  those 
of  the  mortgagee.  If  the  latter,  upon  showing  that  the 
mortgagor  is  insolvent,  obtains  a  receiver  of  the  rents 
and  profits,  the  appointment  of  such  receiver  cannot 
operate  retroactively  so  as  to  vest  in  him  a  right  to 
crops  previously  attached.  In  such  cases  the  rights  of 
the  receiver  seem  not  to  relate  to  the  date  of  the  mort- 
gage, but  to  be  such  only  as  were  vested  in  the  mort- 
gagor at  the  time  of  the  appointment."® 

»5  Smith  V.  Jpnks,  1  Denio.  580,  affirmed  as  Jenks  v.  Smith.  1  N.  Y. 
90;  Wintermute  v.  Light,  46  Barb.  278.  One  who,  under  a  timber 
lease,  has  the  right  to  cut  and  remove  timber,  has  a  mere  chattel 
interest,  Avhich  is  subject  to  sale. as  personalty.  Caldwell  v.  Fifield, 
4  Zab.  101. 

»<5  Penton  v.  Robart,  2  East.  91:  Wyiulliam  v.  Way,  4  Taunt.  31fi: 
Maples  V.  Millon,  31  Conn.  ,")98:  Miller  v.  Baker,  1  Met.  27.  For 
essay  on  growing  crops,  see  7  Chic.  L.  N.  391. 

07  Torche  v.  Bodin,  28  La.  Ann.  7(51 ;  Pickens  v.  Webster,  31  La. 
Ann.  870. 

98  Favorite  v.  Deardolf,  84  Ind.  G5G;  Kider  v.  Vrooman,  12  Hun, 
29a. 


§  113       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  446 

While  growing  crops  are  generally  subject  to  execu- 
tion as  personal  estate,  it  may  happen  that  the  interest 
of  the  defendant  therein  at  the  time  of  the  levy  is  not 
such  as  to  warrant  a  levy  thereon.  Thus,  in  Indiana, 
where  lands  are  held  by  husband  and  wife  as  tenants 
by  the  entireties,  and  he  is  without  power  to  sell  or  en- 
cumber them,  the  crops  raised  thereon  are  held  not  to 
be  subject  to  execution  against  him.**^  Whether  they 
are  subject  to  execution  against  either  of  the  spouses 
must,  in  our  judgment,  depend  upon  whether  or  not 
he  or  she  may  voluntarily  dispose  of  them,  or  of  some 
interest  in  them,  without  the  concurrence  of  the  other. 
Where,  as  at  common  law,  a  husband  has  a  right  to  the 
possession  and  control  of  the  property  during  the  joint 
lives  of  himself  and  his  wife,  and  to  receive  the  rents 
and  profits  thereof,  his  life  interest  and  his  right  to 
growing  crops,  as  they  were  subject  to  his  voluntary 
disposition,  must  have  been  subject  to  execution  with 
the  limitation  that  a  sale  under  execution,  like  his  vol- 
untary transfer,  could  not  prejudice  the  rights  .of  his 
wife  in  the  event  of  her  surviving  him.  But  if,  either 
by  a  statute  enacted  in  the  state  or  by  the  con- 
struction by  its  courts  of  the  common  law,  a  husband 
cannot  voluntarily  dispose  of  growing  croj^s  without 
the  consent  of  his  wife,  because  they  hold  the  lands 
upon  which  they  grew  by  the  entireties,  they  are  not 
subject  to  execution  against  either  of  the  spouses.**" 
In  some  of  the  states  a  conclusion  has  been  reached 
that,  under  their  statutes,  a  husband  and  wife  must  be 
regarded  as  tenants  in  common  of  the  products  of  the 

B9  Patton  V.  Rankin,  C8  Ind.  245,  34  Am.  Rep.  254. 

If"  riielps  V.  Simons,  159  Mass.  41 5.  38  Am.  St.  Rep.  4.30;  Dickey 
V.  Converse  (Mich.),  7G  N.  W.  80;  Hiles  v.  Fisher,  144  N.  Y.  306,  43 
Am.  St.  Rep.  702. 


447  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  113 

land  held  by  tbp  entireties,  witli  power  to  each  to  dis- 
pose of  his  or  licr  moiety  during  their  joint  lives. 
Where  such  is  the  law,  the  interest  of  each  is  subject 
to  execution  aj;ainst  liim  or  her.^*^^ 

Wh(U'e  crojjs  have  been  raised  by  one  person  on  the 
land  of  another,  under  a  lease  or  contract  by  which  he 
and  the  owner  of  the  land  share  in  such  crops,  there  is 
some  doubt  concerning  the  nature  of  the  interests  of 
the  parties,  and  tlierefore  some  ditticulty  in  determin- 
ing when  and  against  whom  they  are  subject  to  execu- 
tioii.  They  are  in  some  instances  subject  to  execution 
against  the  land-owner  only,  in  other  instances  against 
the  cropper  only,  and  in  still  other  instances  against 
both  the  land-owner  and  the  cropx^er.  In  by  far  the 
greater  number  of  cases  the  contract  or  leasing  is  such 
that  both  parties  at  all  times  have  an  interest  in  the 
crops  prior  to  their  division  as  tenants  in  common 
thereof;  '*^^  and  where  this  is  so,  the  interest  of  each  is 
necessarily  subject  to  an  execution  against  him.  The 
question  is  one  of  intention,  to  be  determined  from  the 
whole  contract.  If  the  contract  shows  that  it  was  the 
intention  of  the  parties  to  divide  the  specific  products 
of  the  premises,  the  intention  would  seem  to  be  mani- 
fest that  each  should  at  all  times  prior  to  the  division 

101  Bnttlar  v.  Rnsonblath.  42  N.  .T.  Eq.  051,  59  Am.  Rep.  r>2;  Hlles 
V.  Fislior.  144  N.  Y.  30G.  43  Am.  St.  Rop.  7(52. 

102  Freeman  on  Cotenancy  and  Partition,  sec.  100;  Foote  v.  Col- 
vin.  3  .Johns.  210.  3  Am.  Dec.  478;  De  Mott  v.  Hagerman.  8  Cow. 
220.  IS  Am.  Dec.  443;  Putnam  v.  Wise,  1  Hill,  234,  37  Am.  Dec. 
309;  Wentworth  v.  Portsmouth  R.  R.,  55  N.  H.  540;  Guest  v.  Op- 
dyke,  31  N.  J.  L.  552;  Cooper  v.  McGrew,  8  Or.  327;  Esdon  v.  Col- 
burn.  28  Vt.  031,  07  Am.  Dec.  730;  Bernal  v.  Hovious.  17  Cal.  541. 
79  Am.  Dec.  147;  Delany  v.  Root,  99  Mass.  546;  Johnson  v.  Hoff- 
man, 53  Mo.  504;  Lowe  v.  Miller,  3  Gratt.  205.  40  Am.  Dec.  188; 
Thompson  v.  Ma  whinny,  17  Ala.  302,  52  Am.  Dec.  176;  Schell  v. 
Simon,  00  Cnl.  204. 


§  113       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  44a 

have  a  title  to  his  moiety  of  such  products.  If,  on  the 
other  hand,  the  lease  or  contract  contains  words  im- 
porting a  present  demise  and  a  reservation  of  a  portion 
of  the  crop  as  rent,  the  parties  seem  to  stand  toward 
each  other  in  the  relation  of  debtor  and  creditor,  the- 
debt  being  payable  in  produce;  and  the  tenant  is  the 
sole  owner  of  such  produce  until  the  part  due  the  land- 
lord is  segregated  and  paid  to  him.^^^  Where  this  is 
the  case  the  crops  are  subject  to  an  execution  against 
the  tenant,  but  to  none  against  the  landlord.^^*  The 
leasing  or  contract,  taken  as  a  whole,  may,  in  sub- 
stance, provide  that  the  cropper  give  his  services  in 
consideration  of  receiving  a  portion  of  the  crop.  In 
this  event  he  is  regarded  as  having  possession  of  the 
land  merely  for  the  purposes  of  cultivating  and  har- 
vesting his  crop;  the  obligation  of  the  landlord  to  him 
is  in  the  nature  of  a  debt  merely,  and  he  has  no  title 
to  any  part  of  the  crop  until  its  segregation  and  pay- 
ment to  him.  His  interest  is  not  subject  to  execu- 
tion.^"^   The  difference  between  a  cropper  and  a  ten- 

103  Deaver  v.  Rice,  4  Dev.  &  B.  431.  34  Am.  Dec.  3SS;  Woodruff  v. 
Adams,  5  Blackf.  317,  85  Am.  Dec.  122:  Harrison  v.  Ricks,  -71  N.  C. 
7;  Walls  v.  Preston,  25  Cal.  59;  Dixon  v.  Niccolls,  39  111.  372,  89 
Am.  Dec.  312;  Sar.ueut  v.  Courrier,  66  111.  245;  Front  v,  Hardin,  56 
Ind.  165:  Townsend  v.  Isenberger.  45  Iowa,  670;  Warner  v.  Abbey, 
112  Mass.  355;  Darling  v.  Kelly,  113  Mass.  29;  Dockbam  v.  Parker,. 
8  Greenl.  137,  23  Am.  Dec.  547. 

104  W^altson  v.  Bryan,  64  N.  C.  764. 

105  Brazier  v.  Ansley,  11  Ired.  12,  51  Am.  Dec.  408;  Jeter  v.  Penn, 
28  La.  Ann.  230,  26  Am.  Rep.  98;  McNeely  v.  Hart.  10  Ired.  63.  51 
Am.  Dec.  377;  State  v.  Burwell,  63  N.  C.  661;  Porter  v.  Cbandler. 
27  Minn.  301.  38  Am.  Rep.  293;  Hammock  v.  Creedmore,  48  Ark. 
264;  Christian  y.  Crocker,  25  Ark.  327,  99  Am.  Dec.  22:3;  Bryant  v. 
Pugh,  86  Ga.  525;  Appling  v.  Odiim,  46  Ga.  .583;  Chase  v.  McDon- 
nell, 24  111.  236;  Edgar  v.  .Tewell,  34  N.  J.  L.  259;  Andrew  v.  New- 
comb,  32  N.  Y.  417;  McCormick  v.  Skyles.  168  Pa.  St.  590;  Adams 
V.  McKesson.  .53  Pa.  St.  81,  91  Am.  Dec.  183;  Consolidated  etc.  Co.  v. 
Hawley,  7  S.  D.  229. 


449  TERSOXAL  PROPERTY  SUBJECT  TO  EXIXUTION.        §  ]13 

ant  is  that  the  latter  has  an  estate  or  interest  in  real 
property  demised  to  him,  entitlinjj;-  him  to  the  posses- 
sion thereof  for  the  time  and  in  the  manner  designated 
in  the  lease,  and  it  is  not  material  whether  the  con- 
tract giving  him  his  rights  is  called  a  lease  or  not.    It 
is  to  be  adjudged  by  its  legal  effect,  and  not  by  its 
name  only.    "A  cropper  has  no  estate  in  the  land;  that 
remains  in  the  landlord.     Consequently,  although  he 
is  in  some  sense  a  possessor  of  the  crop,  it  is  only  the 
possession  of  a  servant,  and  is  in  law  that  of  the  land- 
lord.    The  landlord  must   divide   to   the   cropper   his 
share.     In  short,  he  is  a  laborer  receiving  pay  in  his 
share  of  the  crop."  *^^    The  owner  of  the  land  may  al- 
ways, it  has  been  held,  by  apt  words  in  his  contract 
or  lease,  provide  that  the  title  to  all  the  crops  raised 
shall  remain  in  him  until  the  tenant's  or  cropper's  part 
shall  be  segregated  and  delivered  to  him;  and  where 
such  words  are  employed,  no  one  other  than  the  land- 
owner has  any  interest  in  the  crops  subject  to  seizure 
and  sale  under  execution.^"''     There  are  unquestion- 
ably many  cases  which  make  no  distinction  between  a 
tenant  and  a  cropper,  and  which  affirm  that  a  coten- 
ancy exists   between  a  landlord    and  the  person  who 
has  cultivated  or  produced  crops  on  his  land  under  a 
contract  by  which    he  should    have   a    share   therein, 
though  such  contract  manifestly  gives  to  the  person 

jort  Harrison  v.  Kicks,  71  N.  C.  11;  Steel  v.  Frick,  56  Pa.  St.  172: 
Adams  v.  McKesson,  53  Pa.  St.  81.  91  Am.  Dec.  183;  Ponder  v. 
Rhea,  32  Ark.  435;  Brown  v.  Coats,  56  Ala.  439;  Gray  v.  Robinson, 
(Ariz.)  33  Pac.  712. 

107  Wentworth  v.  Miller.  53  Cal.  0;  Ponder  v.  Rhea,  32  Ark.  435; 
Esdon  V.  Colburn,  28  Vt.  r>31;  Moulton  v.  Robinson,  27  X.  H.  550; 
Kelley  v.  Weston.  20  Me.  232;  Howell  v.  Foster,  65  Cal.  169;  Smith 
V.  Atkins.  IS  Vt.  461;  Andrew  v.  Newcomb,  32  N,  Y.  417. 
Vol.  I.— is 


§  113       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  450 

producing  the  crops  a  right  of  possession,  and  to  all 
intents  and  purposes  makes  him  a  tenant.^"^ 

In  many  of  the  states  are  statutes  containing  pro- 
visions  respecting   mortgages   of   chattels,   including 
crops,  requiring  such  mortgages  to  be  executed  and 
recorded  in  the  manner   designated  in  such  statutes, 
and  pronouncing  them  to  be  otherwise  void;  and  con- 
tracts entered  into  between  landowners  and  persons 
leasing  their  lands,  or  otherwise   accorded  a  right  to 
cultivate  them,  and  providing  that  the  landowner  shall 
remain  the  owner  of  the  crops  until  his  rent  has  been 
paid  or  his  share  delivered  to  him,  have  been  closely 
scrutinized  for  the  purpose  of    determining    whether 
they  are  not  chattel  mortgages  in  disguise.    As  we  un- 
derstand the  decisions  upon  this  subject,  where  these 
statutes  are  drawn  in  question,  it  becomes  necessary 
to  inquire  whether  the  relation  between  the  parties  is 
that  of  landlord  and  tenant,  or  landowner  and  cropper, 
for,  if  the  relation  be  the  former,  and  the  object  of  any 
provisions  seeking  to  retain  or  reserve  to  the  landlord 
title  to  the  crops,  or  some  portion  thereof,  is  to  secure 
him  thfe  payment  of  something  due  to  him,  then,  un- 
less the  contract  is  so  executed  that  it  may  be  held 
valid  as  a  crop  or  chattel  mortgage,  the  whole  of  the 
crop  is  subject  to  execution  under  a  writ  against  the 
tenant.     It  is  not  material  in  what  form  the  contract 
has  been  put,  nor  what  legal  effect  the  parties  have  by 
it  attributed  to  its  provisions;  for  if  it  is  in  substance 
a  lease,  the  crops  produced  are  the  tenant's,  and  may 
be  seized  under  execution  against  him  until  he  has 
turned   over  to  the  landlord  the   share  reserved   by 

los  Williams  v.  Nolen.  84  Ala.  1G7;  Ponder  v.  rJion,  .32  Ark.  4.3.'): 
Fiquot  V.  Allison,  12  Mifh.  328.  86  Am.  Dec.  '>4:  Betls  v.  Ratliff.  ."^O 
Miss,  ani:  Daniels  v.  Brown.  34  N.  H.  454,  G9  Am.  Dec.  505;  Mc- 
Casl.an   v.  Nance,  46  S.  C.  568. 


451  PERSONAL  PROPEllTY  SUBJECT  TO  EXECUTION.        §  113 

j^-jjj  io»     rj^2ie  parties  may  assume  toward  each  other 

109  Farnum  v.  Heffner,  70  Cal.  175,  12  Am.  St.  Rep.  174;  Stockton 
etc.  Soc.  V.  ruivis,  112  Cal.  23G,  53  Am.  St.  liep.  210;  Bailey  v.  Fille- 
brown,  9  Me.  12,  23  Am.  Dee.  o21);  Synionds  v.  Hall,  37  Me.  354.  59 
Am.  Dec.  53;  Koss  v.  Swaringer.  9  Ired.  4Sl. 

In  the  case  of  Stockton  etc.  Soc.  v.  Purvis,  112  Cal.  230,  53  Am. 
St.  Hep.  210,  it  appeared  tliat  a  laudowuer  outcred  into  a  contract 
with  one  Dallns,  letting  land  to  the  latter  for  the  term  of  one  year 
upon  an  oral  agreement  to  farm  the  land  at  an  aiiuual  cash  rental 
of  two  thousand  dollars,  and  that  the  title  to  the  crop  should,  durinis? 
the  term,  remain  in  the  landowner;  that  the  crops  were  to  be  hauled 
to  the  nearest  warehouse  and  stored  in  his  name  and  by  him  sold; 
that  out  of  the  proceeds  he  should  retain  the  rent  stipulated  for  and 
pay  the  residue  to  Dallas,  but  that  no  part  of  the  crop  should  be 
in  any  way  subjcL-t  to  his  disposition.  He  entered  into  possession 
of  the  land  and  planted  a  crop  of  wheat,  which,  while  growing, 
was  attached  as  his  property.  Thereupon  the  landlord  brought  an 
action  against  the  oflicer  levying  the  attachment  for  the  conversion 
of  the  property.  The  appellate  court  said:  "The  legal  soundness 
of  pl.nintiff's  claims  is  wholly  dependent  upon  the  true  construction 
of  this  contract  of  lease,  and  the  general  rules  of  law  for  the  in- 
terpretation of  contracts  are  applicable  here.  The  fact  that  it  is  a 
contract  between  a  lessor  and  a  lessee  of  land,  for  the  farming 
thereof,  in  no  wise  proves  it  an  exception  to  the  application  of  the 
general  rules  of  interpretation;  and  the  first  and  controlling  rule 
for  such  interpretation  is.  What  was  the  intention  of  the  parties  at 
the  time  of  the  making  of  the  contract?  Another  rule  of  interpreta- 
tion, equally  controlling  and  binding,  is  that  such  intention  must, 
be  gathered  from  the  contract  taken  as  a  whole,  considering  all  its 
provisions  together,  and  not  from  any  one  clause  considered  as 
standing  alone.  Plaintiff  insists  that  the  title  to  this  growing  crop 
was  in  it.  and  points  to  the  clause  in  the  contract  to  support  its 
contention  which  provides:  'It  is  understood  and  agreed  between 
plaintiff  herein  and  Robert  Dallas  that  the  title  to  said  crops  raised 
thereon  during  such  term  is  to  remain  in  said  plaintiff.'  Testing 
this  contract  by  this  clause  alone,  plaintiff's  position  is  impregna- 
ble. Closing  our  eyes  to  all  other  provisions,  we  would  be  bound 
to  hold  the  title  to  be  in  plaintiff.  But  this  court  is  not  authorized 
by  the  rules  of  law  to  measure  the  intentions  of  these  contracting 
parties  in  any  such  manner.  No  clause  in  a  contract  in  terms  lo- 
cating the  title  to  the  property  forming  the  subject-  matter  of  the 
contract  in  one  of  the  parties  is  controlling  upon  a  court,  as  against 
the  provisions  of  the  contract,  taken  as  a  whole,  locating  the  title 
In  the  other  party.  There  is  nothing  in  the  name  given  an  instru- 
ment whirl!  will  be  in  any  way  binding  or  controlling  upon  the 
court.     Calling  a  contract  a  lease  or  a  sale  will  not  make  it  a  lease 


§  113       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  452 

sncli  reciprocal    obligations  as   give  them  not  only  a 

or  a  sale.  The  agreement,  whatever  it  may  be.  when  coming  before 
a  court,  will  be  named  accoreliug  to  its  provisions,  and  any  technical 
christening  of  it  by  the  parties  cannot  control  its  true  interpreta- 
tion. As  was  said  In  Park  etc.  Co.  v.  White  River  etc.  Co.,  101 
Gal.  39,  referring  to  a  certain  written  Instrument:  'This  paper  was 
not  a  lease.  Calling  it  a  lease  did  not  establish  the  fact.  This  is 
peculiarly  a  case  where  there  is  nothing  in  a  name,  for  the  con- 
tents of  the  paper  determine  its  true  character.'  Again  in  Heryford 
v.  Davis,  102  U.  S.  23.5,  in  speaking  as  to  the  true  construction  of  a 
contract,  the  court  said:  'The  answer  to  this  question  is  not  to  be 
found  in  any  name  which  the  parties  may  have  given  to  the  instru- 
ment, not  alone  in  any  particular  provision  It  contains,  discon- 
nected from  all  others,  but  in  the  ruling  intention  of  the  parties, 
gathered  from  all  the  language  they  have  used.  It  is  the  legal 
effect  of  the  whole  which  is  to  be  sought  for.  The  form  of  the  in- 
strument is  of  little  account.'  In  Putman  v.  Wise,  1  Hill.  246,  37 
Am.  Dec.  309,  the  court  quotes  from  AVoodfall's  Landlord  and  Ten- 
ant, where  the  author  says:  'The  most  proper  and  authentic  form  of 
words  may  be  overcome  by  a  contrary  intent  appearing  in  the  deed 
of  demise.'  Keeping  the  foregoing  principles  in  view,  let  us  weigh 
and  measure  this  contract  by  considering  all  its  parts  together. 
Plaintiff  leased  this  land  for  a  cash  rent  of  two  thousand  one  hun- 
dred and  forty  dollars.  There  was  an  express  promise  to  pay  this 
amoimt  of  money,  and  its  payment  was  in  no  way  dependent  upon 
the  raising  of  any  crop.  There  was  an  independent  personal  lia- 
bility. The  crops  may  have  proved  a  total  failure,  and  still  the 
money  called  for  by  the  contract  was  a  present  binding  liability. 
There  is  not  even  a  provision  in  the  contract  that  the  title  to  the 
crops  should  return  to  the  lessee  upon  the  payment  of  the  rent 
money.  Under  plaintiff's  contention,  this  money  may  have  been 
paid  within  a  feAv  days  after  the  execution  of  the  lease,  and  still  the 
crops  would  have  remained  the  lessor's  property.  According  to 
plaintiff's  construction  of  the  contract,  it  owned  both  the  money 
demand  for  the  rent  and  the  growing  crop.  It  could  have  sold  the 
demand  for  full  value  and,  at  the  same  time,  have  mortgaged  the 
crop,  or  even  sold  it,  giving  perfect  title  to  both  demand  and  crop. 
Plaintiff  may  have  transferred  or  collected  its  claim,  and  still  the 
crop  of  growing  grain  might  have  been  sold  under  an  attachment 
and  execution  issued  at  the  hands  of  its  creditors.  All  these  things 
could  have  happened  if  plaintiff's  contention  be  true.  We  think 
that  such  was  not  the  intention  of  the  parties,  certainly  not  the  in- 
tention of  the  lessee.  Where  a  person  pays  cash  rent  for  the  ex- 
clusive use  of  a  tract  of  farming  land,  with  the  intention  and  for 
the  express  i)urpose  of  raising  croT)s  of  grain  thereon,  it  would 
seem  that  such  crops  would    belong  to  the   lessee.     Certainly,  that 


453  rEilSOXAL  PllOPKRTV  SUliJECT  TO  KXECUTION.        §  113 

riglit  to  share  iu  the  protits  of  their  veiiiure,  but  also 

should  l>p  the  construction  of  the  contract,  unless  reasons  for  a  dif- 
ferent construction  stand  out  in  bold  relief  upon  its  face,  and  they 
do  not  present  tliemselves  here.  It  further  appears  that  the  uraiu 
was  to  be  hauled  to  a  certain  warehouse  when  harvested,  and 
thereupon  sold  by  plaintiff,  and  the  proceeds  applied  tirst,  to  the 
payment  of  its  cash  rent  of  two  thousand  one  hundred  and  forty 
dollars,  and  the  balance.  If  any.  to  po  to  the  lessee.  It  would  l)e  a 
peculiar  construction  of  this  contract,  and  even  an  al^surd  one,  to 
hold  that  plaintiff  was  to  sell  his  own  crop  of  grain,  and  apply  the 
proceeds  to  tlie  paj'uieut  of  a  claim  owned  and  held  by  it  a^^ainst 
its  lessee.  This  clause  of  the  contract  plainly  indicates  an  attempt 
by  the  lessor  to  hold  the  crop,  when  harvested,  as  security  for  the 
rent.  Takiutr  the  whole  contract  tofiether,  it  clearly  indicates  the 
purpose  of  these  parties  was  to  create  a  lien  upon  the  {jrowinj;  crop 
to  secure  the  payment  of  the  cash  rent;  and  any  direct  statement 
in  the  contract  itself  that  such  was  not  the  purpose,  or  that  the  title 
to  the  crop  was  to  remain  in  the  lessor,  must  go  down  as  against 
the  plain  intention  of  the  parties,  as  evidenced  by  the  entire  con- 
tract when  held  before  us  by  its  four  corners  for  consideration.  In 
the  examination  of  the  question  here  presented  we  are  not  at  all 
loth  to  arrive  at  the  conclusion  reached.  Under  the  law  of  this 
state,  there  is  no  reason  why  a  transaction  of  the  character  here 
presented  should  ever  have  been  entered  into.  It  was  secret  in 
every  respect.  It  was  Dot  even  iu  writing.  As  indicated  by  the 
amount  of  rent  to  be  paid,  the  lessee  was  farming  a  large  tract  of 
plaintiff's  land.  It  undoubtedly  appeared  to  the  public  that  he  had 
an  interest,  at  least,  in  the  crops  which  he  ■u'as  cultivating.  Under 
this  contract  of  lease,  as  plaintiff  asks  to  have  it  construed,  the 
dealer  who  furnished  the  sacks  to  sack  the  grain,  and  the  man  who 
furnished  the  labor  and  machinery  to  harvest  it,  could  not  attach  it 
for  the  labor  and  materials  furnished.  The  public  should  not  be 
dealt  with  in  this  way,  and  the  law  is  not  favorable  to  any  such 
secret  transactions.  Again,  there  was  no  honest  excuse  for  it,  for 
the  plaintiff  could  well  have  taken  a  chattel  mortgage  upon  the 
growing  crop  to  secure  his  rent,  and  thus  the  world  would  have 
had  notice  of  the  financial  standing  of  the  lessee,  and  could  have 
dealt  with  him  in  the  light  of  day  with  open  eyes.  By  reason  of 
the  opportunities  for  fraud  presented  by  this  character  of  contract, 
courts  are  inclined  to  scrutinize  them  closely,  and,  as  we  have 
stated,  will  not  be  concluded  from  such  scrutiny  by  any  name 
given  the  instrument,  or  by  any  single  provision  contained  therein. 
It  is  the  legal  effect  of  the  contract  as  an  entirety  tliat  points  our 
judgment.  The  language  of  this  court  in  Palmer  v.  Howard,  72  Cal. 
293,  1  Am.  St.  Rep.  GO.  is  full  of  meaning,  and  sheds  a  flood  of  liglit 
upon  this  question  of  construction.     It  is  there  said:  'But,  in  apply- 


§  113       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  454 

to  make  tlieir  rights  and  liabilities  those  of  partners, 

ins:  this  rule,  it  must  be  remembered  in  jieneral  that  the  policy  of 
the  law  is  airaiust  upholding  secret  liens  and  charges  to  tlie  injury 
of  innocent  purchasers  or  incumbrancers  for  value,  and,  in  parti- 
cular, that  mortgages  of  personal  property  are  permitted  only  in 
certain  specified  cases,  and  then  only  upon  the  observance  of  cer- 
tain formalities,  designed  to  secure  good  faith  and  to  give  notice  to 
the  world  of  the  character  of  the  transaction.  These  provisions  as 
to  mortgages  cannot  be  evaded  by  any  mei'e  shuffling  of  words. 
When  it  is  clear  from  the  whole  transaction  that,  for  all  practical 
purposes,  the  OAvnership  of  property  was  intended  to  be  trausfen-ed, 
and  that  the  seller  only  intended  to  reserve  a  security  for  the  price, 
any  characterization  of  the  transaction  by  the  parties,  or  any  denial 
of  its  legal  effect,  will  not  be  regarded.  The  question,  it  is  true,  is 
one  of  intention;  but  the  Intention  must  be  collected  from  the  whole 
transaction,  and  not  from  any  particular  feature  of  it.'  See.  also. 
Walls  V.  Preston,  25  Cal.  63.  For  the  foregoing  reasons  we  con- 
clude this  contract  was  an  attempt  to  obtain  the  advantages  of  a 
chattel  mortgage  without  complying  with  the  provisions  of  the 
statute  upon  that  subject.  As  a  condition  precedent  to  the  begin- 
ning of  this  action,  i^laintiff  made  a  demand  upon  the  attaching 
officer  for  the  return  of  the  property  attached.  It  is  noAV  claimed 
by  defendant  that  the  demand  was  materially  defective;  but  with- 
out passing  upon  that  question  we  are  able  to  say  the  written  de- 
mand is  pregnant  with  meaning,  as  showing  the  interest  claimed 
by  plaintiff  in  this  grain.  In  that  demand,  it  is  clearly  shown  what 
plaintiff  considered  tl\e  status  of  this  property  to  be,  and  also  the 
construction  put  xipon  this  contract  by  it.  In  its  demand  upon  the 
sheriff,  plaintiff  did  not  even  claim  to  be  the  owner  of  the  prop- 
erty, but  simply  asserted  a  lien  thereon.  The  demand  asserts  that 
said  crops  'were,  and  are  now,  subject  to  the  lien  of  the  Stockton 
Savings  and  Loan  Society  for  rent  reserved,  to  the  amount  of  two 
thousand  one  hundred  and  forty  dollars.'  Above  every  one  else, 
the  plaintiff  should  know  what  its  own  intentions  were  in  entering 
into  this  contract.  There  are  some  cases  which  would  seem  to  be 
opposed  to  the  views  here  expressed,  notably  Smith  v*.  Atkins,  18 
Vt.  401;  Esdon  v.  Colburn,  28  Vt.  031,  67  Am.  Dec.  730,  and  Andrew 
V.  Newcoml),  32  N.  Y.  417.  With  these  cases  we  will  not  here  deal. 
Possibly,  to  a  large  degree,  those  decisions  were  made  from  ne- 
cessity, by  reason  of  the  absence  of  any  chattel  mortgage  act,  but 
we  pass  them  by,  and  come  to  a  consideration  of  the  cases  found 
in  our  own  reports  upon  this  question.  Tlie  first  and  principal  case 
In  this  state,  and  which  at  first  glance  seemingly  looks  the  other 
way  from  the  views  we  have  expressed,  is  Howell  v.  Foster,  65 
Cal.  169.  The  conclusion  there  arrived  at  is  based  upon  the  deci- 
sions we    liave    cited  from  otlier    states;  but,  whatever  the  court 


455  PKIISONAL  rUOPERlY  SUBJECT  TO  EXECUTION.        §  114 

in  which  event  their  property  will  be  subject  to  execu- 
tion as  other  partnership  property/*'* 

§  114.  Fixtures.— It  was  formerly  thonjjht  that  fix- 
tures "*  were  not  liable  to  be  taken  in  execution.  But 
it  is  now  well  settled  that  they  are  subject  to  be 
made  to  contribute  to  the  payment  of  the  debts  of 
their  owner.**^  The  chief  difficulty  is  in  deciding  what 
is  a  fixture.  The  tests  for  makinu:  a  correct  decision 
cannot  be  fully  stated  otherwise  than  by  writing  a 
treatise  on  the  subject  of  fixtures.  This  we  shall  not 
here  undertake  to  do.  We  shall,  nevertheless,  give  a 
few  of  the  more  prominent  tests  formulated  and  ap- 

might  do  if  another  case  with  identical  facts  to  those  there  shown 
was  proscntcd  before  it,  it  is  unnecessary  to  say,  for  this  case  is 
different  in  material  respects  from  Howell  v.  Foster,  65  Cal.  109. 
That  was  not  a  case  of  cash  rent.  Indeed,  there  is  no  agreement 
to  pay  any  rent  whatever.  The  word  'rent,'  or  its  equivalent,  is 
not  found  at  any  place  in  the  contract.  It  is  practically  a  contract 
for  hiring,  the  wages  of  the  men  performing  tlie  labor  and  cultivat- 
ing the  land  to  be  paid  by  three-fourths  of  the  grain  raised  upon 
the  land,  delivered  to  him  by  the  owner,  after  deducting  certain 
moneys  for  advances  previously  made.  Went  worth  v.  Miller,  53 
Cal.  9;  Sunol  v.  MoUoy,  63  Cal.  369;  and  Blum  v.  McIIugh,  92  Cal. 
497,  which  are  cited  in  respondent's  brief,  are  not  in  point  upon  the 
question  here  involved." 

no  Reynolds  v.  Tool.  84  X.  C.  37,  37  Am.  Rep.  607.  note:  Mf-Crary 
V.  Slaughter,  .58  Ala.  2.30:  Christian  v.  Crocker.  25  Ark.  327:  Donnell 
V.  Ilarshe,  67  Mo.  170:  Holifield  v.  White,  52  Ga.  567:  :Musser  v. 
Brink,  68  Mo.  242;  Autrey  v.  Frieze,  59  Ala.  587;  Adams  v.  Carter, 
53  Ga.  100. 

111  We  use  the  term  "fixture"  according  to  the  definition  given 
in  Amos  and  Ferard  on  Fixtures,  '"as  denoting  tliose  personal  chat- 
tels whicli  have  been  annexed  to  the  land,  and  which  may  be  after- 
ward severed  and  removed  by  the  party  who  has  annexed  them,  or 
his  personal  represeutative.  against  the  will  of  the  owner  of  the 
freehold."  See  Hallen  v.  Rundtr,  1  Cronip.  M.  &  R.  270;  3  Tyrw. 
959. 

112  Amos  and  F'erard  on  Fixtures,  321;  Brown  on  Fixtures,  sec. 
193;  I'oole's  Case,  1  Salk.  308;  Pitt  v.  Slicw.  4  r.arn.  &  Aid.  207; 
Lemar  v.  ]Miles.  4  Watts.  330:  Doty  v.  Gorham,  5  Tick.  4S7.  10  Am. 
Dec.  417;  Ouibony  v.  Jones.  19  X.  Y.  234. 


§  114        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  45fl 

plied  in  some  of  the  recent  decisions.  Where  the  ques- 
tion arose  between  a  mortgagee  and  a  grantee  of  the 
mortgagor,  the  court  said  that,  "in  order  to  determine 
whether  a  thing  is  a  fixture  or  not,  we  must  loolv  to  the 
manner  of  its  annexation,  the  intention  of  the  person 
who  made  the  annexation,  and  the  purpose  for  which 
the  premises  are  used."  ^*^  "The  united  application 
of  three  requisites  is  regarded  as  the  true  criterion 
of  an  immovable  fixture:  (1)  real  or  constructive  an- 
nexation to  the  freehold;  (2)  appropriation  or  adapta- 
tion to  the  use  or  purpose  of  that  part  of  the  realty 
with  which  it  is  connected;  (3)  the  intention  of  the 
party  making  the  annexation  to  make  the  article  a 
permanent  accession  to  the  freehold.  According  to  the 
elementarA'  rule  of  the  common  law,  whatever  is  an- 
nexed to  the  freehold  becomes,  in  legal  contemplation, 
a  part  of  it,  and  is  thereafter  subject  to  the  same  in- 
cidents and  conditions  as  the  soil  itself.  But  the  diver- 
sity of  trade  and  the  development  of  manufactures  re- 
quired that  the  strict  rules  of  the  common  law  be  meas- 
urably relaxed,  and  it  may  now  be  said  that  the  nature 
of  the  articles,  and  the  manner  in  which  they  are  an- 
nexed, and  the  intention  of  the  party  making  the  an- 
nexation, together  with  the  policy  of  the  law,  are  con- 
trolling factors  in  determining  whether  an  article, 
which  may  or  may  not  be  a  fixture,  becomes  part  of 
the  realty  by  being  annexed  to  the  freehohl.  The  pur- 
pose and  intention  of  the  parties,  the  effect  and  mode 
of  annexation,  and  the  public  policy  in  relation  thereto, 
are  all  to  be  considered."  ^'"^^ 

In  considering  the  decisions  maintaining  that  the  in- 
tention of  the  party  making  the  annexation  is  often 

113  Lavenson  v.  Standard  S.  Co..  80  Cal.  245,  13  Am.  St.  Rep.  147. 
113a  Burkley  v.  Forkner,  117  Ind.  180. 


457  PERSONAL  I'ROPERTi  SUBJECT  TO  EXECUTION.       §  114 

controlling,  the  suprem<,'  judicial  court  of  Massachu- 
setts added  this  caution:  "These  cases  seem  to  recog- 
nize the  true  principle  on  which  the  decisions  should 
rest,  only  it  should  be  noted  that  the  intention  to  be 
souj;ht  is  not  the  undisclosed  i»ui-i)ose  of  the  actor,  but 
the  intention  implied  and  manifested  by  his  act.  It  is 
an  intention  which  settles,  not  merely  his  own  rights, 
but  the  rights  of  others  who  have,  or  who  may  acquire, 
interests  in  the  property.  They  cannot  know  his  se- 
cret purpose;  and  their  rights  depend,  not  upon  that, 
but  upon  the  inferences  to  be  drawn  from  what  is  ex- 
ternal and  visible.  In  cases  of  this  kind,  every  fact 
and  circumstance  should  be  considered  which  tends  to 
show  what  intention,  in  reference  to  the  relation  of  the 
machine  to  the  real  estate,  is  properly  imputable  to 
him  who  put  it  in  position.  Whether  such  an  article 
belongs  to  the  real  estate,  is  primarily  and  usually  a 
question  of  mixed  law  and  fact.  But  the  principal 
facts,  when  stated,  are  often  such  as  will  permit  no 
other  presumption  than  one  of  law.  It  is  obvious  that 
in  most  cases  there  is  no  single  criterion  by  which  we 
can  decide  the  question.  The  nature  of  the  article, 
and  the  object,  the  effect,  and  the  mode  of  its  annexa- 
tion, are  all  to  be  considered.  In  this  commonwealth 
it  has  been  said  that  'whatever  is  placed  in  a  building, 
subject  to  a  mortgage,  by  a  mortgagor  or  those  claim- 
ing under  him,  to  carry  out  the  purpose  for  which  it 
was  erected,  and  permaui^ntly  to  inci-ease  its  value  for 
occupation  or  use,  although  it  may  be  removed  with- 
out injury  to  itself  or  the  building,  becomes  part  of  the 
realty.'  "  "* 

"4  Hopewell  Mills  v.  Taunton  S.  B.,  150  Mass.  519,  15  Am.   St. 
Rep.  235. 


§  ]  14       PERSONAL  FROPERTY  SUBJECT  TO  EXECUTION.  458 

''One  of  the  tests  of  whether  a  chattel  retains  its 
character  or  becomes  a  fixture  is  the  uses  to  which  it 
is  put.  If  it  be  phiced  on  the  kind  for  tlie  purpose  of 
improving  it,  and  to  make  it  more  valuable,  that  is 
evidence  that  it  is  a  fixture."  *^®  "There  must  be  ac- 
tual annexation,  with  an  intention  to  make  a  perma- 
nent accession  to  the  freehold,  but  it  is  not  necessary 
that  there  be  an  intention  to  make  the  annexation  per- 
petual. A  test  so  severe  would  be  impracticable  in 
its  application.  The  intention  must  exist  to  incorpo- 
rate the  chattels  with  the  real  estate,  for  the  uses  to 
which  the  real  estate  is  appropriated,  and  there  must 
be  the  presence  of  such  facts  and  circumstances  as  do 
not  lead  to,  but  repel,  the  inference  that  it  is  intended 
to  be  a  temporary  annexation.-'  ^^^  "In  using  the  term 
'fixture,'  we  of  course  use  it  in  its  legal  sense,  as  some- 
thing so  attached  to  the  realty  as  to  become,  for  the 
time  being,  a  part  of  the  freehold,  and  as  contradis- 
tinguished from  a  mere  chattel."  ^^"^ 

The  test  of  physical  attachment  is  often  spoken  of 
as  materia],  if  not  conclusive,  and  material  it  often  is,, 
and  conclusive  it  may  occasionally  be.  Thus,  if  a  chat- 
tel is  so  physically  incorporated  in,  and  made  a  part 
of,  the  realty  that  it  cannot  be  detached  or  removed 
witliout  the  substantial  destruction  of  such  realty,  or 
of  some  structure  wliich  is  confessedly  a  part  thereof, 
then  such  chattel  has  become  an  irremovable  fixture, 
whether  attached  by  the  owner  of  the  realty  or  by  a 
tenant  or  licensee  from  him.  Thus  a  baker's  oven, 
made  of  brick,  by  a  tenant  of  the  leased  building,  and 

115  Atchison  o.tc.  R.  R.  Co.,  42  Kan.  28.  16  Am.  St.  Rep.  471; 
Winslow  V.  Bromioh,  M  Kan.  300,  45  Am.  St.  Rep.  285. 

iisFeder  v.  Van  Winkle,  .o?,  N.  J.  Eq.  370.  .51  Am.  St.  Rep.  628. 
117  Carlin  v.  Ritter,  68  Md.  478,  6  Am.  St.  Rep.  4(;7. 


451)  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  114 

SO  united  with  it  tliat  the  two  are  inseparable  with- 
out the  destruction  of  the  one  and  substantial  injury 
of  the  other,  is  a  fixed  and  permanent  structure,  and 
not  removable  by  the  tenant,  irrespective  oi  what  his 
actual  intention  may  have  been  when  he  constructed 
it.'**  In  the  vast  majority  of  cases,  however,  what 
is  claimed  to  be  a  fixture  is  not  so  attached  that  its  re- 
moval will  work  an}^  substantial  detriment  to  the 
realty,  and  leave  it  of  less  value  than  before  the  an- 
nexation was  made.  Ilence,  the  test  of  physical  an- 
nexation is  dihicult  of  application,  and  there  is  a  strong' 
tendency  on  the  part  of  the  courts  to  treat  it  as  by  no 
means  conclusive,  and  to  look  upon  it  as  material  in 
so  far  only  as  it  aids  in  ascertaining  the  intention  of 
the  party  in  making  the  annexation,  and,  where  it 
clearly  appears  that  the  intention  was  to  make  the 
annexation  temporary,  to  give  effect  to  such  intention 
rather  than  to  the  mode  of  annexation,*''*  nor,  on  the 
other  hand,  is  the  absence  of  physical  annexation  to 
the  soil  conclusive  that  the  chattel  has  not  become  a 
fixture,  for  fences  which  merely  lie  upon  the  ground, 
and  which,  therefore,  can  be  removed  without  disturb- 
ing it,  or  anything  attached  to  it,  are,  nevertheless, 
ordinarily  fixtures/"**  and  so  are  pieces  of  machinery, 
though  entirely  detached,  if  they  are  essential  parts  of 
a  manufacturing  or  other  plant,  which  as  a  wliole  has 
become  a  part  of  the  realty.*'*  The  true  test,  there- 
fore, is,  did  the  person  attaching  the  chattel  to  the 
realty  intend  to  make  a  permanent  annexation  to  it? 

.118  Collamore  v.  r.illis,  149  :Mass.  578.  14  Am.  St.  Kop.  4(;0. 

119  Atchison  etc.  K.  K.  Co.  v.  Moraan,  42  Kan.  2.1.  IG  Am.  St.  Rep. 
471;  Vail  v.  Weaver.  1.'52  Pa.  St.  3l>:}.  10  Am.  St.  Kep.  .598. 

120  Bagley    v.  Columbus    S.  Ky.  Co..  98  Ga.  G20,  58  Am.  St.  Kep. 
325. 

121  Dudley  v.  Ilurst,  G7  Md.  44,  1  Am.  St.  Rep.  3GS. 


§  114       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  460 

In  reacliing  a  conclusion  respecting  his  intention, 
much  greater  importance  should  be  attached  to  his  re- 
lation to  the  property  at  the  time  than  to  the  mode 
in  which  he  made  the  annexation.  If  he  was  the 
owner,  or  believed  himself  to  be  such,  and  the  purpose 
accomplished  or  sought  was  not  temporary  in  charac- 
ter, and  the  use  of  the  chattel  was  such  as  to  indicate 
an  intention  to  thereafter  employ  and  treat  it  as  a  part 
of  the  realty,  the  mode  of  attachment  or  annexation 
is  by  no  means  conclusive,  and  may  not  be  material. 
He  will  be  presumed  to  have  intended  to  make  it  a  part 
of  the  realty,  and  such  presumption  is,  for  most  pur- 
poses, conclusive.  Though  he  was  not  the  owner,  yet 
if  he  believed  himself  to  be  such  and  was  holding  the 
land  adversely  under  a  claim  of  title,^^^  or  if  he  en- 
tered upon  the  land  by  mistake,  supposing  himself  to 
be  upon  his  own  property,^'^  and  made  improvements 
to  enhance  its  value  and  for  permanent  use,  doubtless 
they  must  be  judged  by  the  same  rules  as  if  annexed 
by  the  owner.  The  same  rule  must  be  apjjlied  to  a 
vendee  of  real  property,  who,  while  in  possession 
thereof,  attached  fixtures  thereto,  though  from  some 
cause  he  did  not  afterward  comply  with  his  contract 
of  purchase,  and  hence  was  compelled  to  surrender 
possession  to  his  vendor.*^*  On  the  other  hand,  one 
occupying  real  property  as  a  licensee  or  tenant  of  the 
owner  must  be  presumed  to  have  attached  a  chattel 
tliereto  for  a  temporary  purpose,  not  to  extend  beyond 
the  term  of  his  tenancy  or  license,  and,  unless  the  mode 
of  annexation  or  some  other  circumstance  rebuts  this 

122  Campbell  v.  Reddy,  44  N.  J.  Eq.  244,  6  Am.  St.  Rop.  889. 

123  Atchison  etc.  K.  E.  Co.  v.  Morgan,  42  Kan.  23,  IG  Am.  St.  Rep. 
472;  Dutton  v.  Ensley,  21  Ind.  App.  46. 

124  Hinkley  etc.  Co.  v.  Black,  70  Me.  473.  35  Am.  Rep.  340;  Kings- 
ley  V.  McFarland,  82  Me.  231,  17  Am.  St.  Rep.  473. 


401  PEIWONAL  PKOrEllTY  SUBJECT  TO  EXECUTION.        §  11^ 

presumption,  such  chattel  retains,  durinj,^  such  term, 
its  original  character  of  personal  property/^^ 

Where  the  question  whether  an  article  is  a  fixture 
arises  between  the  owner  of  the  land  and  the  party 
who  affixed  it,  or  between  persons  acquiring  interests 
under  them,  or  either  of  them,  with  notice,  then  the 
intent  of  the  original  parties,  or,  more  pro^jerly  speak- 
ing, the  agreement  between  the  owner  of  the  soil  and 
the  person  who  has  attached  the  thing  thereto,  is  of 
vital  importance  in  determining  whether  such  thing 
has  become  a  part  of  the  real  estate.  For  it  seems  to 
be  well  settled  that  a  house  or  other  structure,  which  is 
not  of  such  a  character  that  it  must  necessarily  be  real 
estate,  but  which  under  ordinary  circumstances  would 
be  so  deemed,  may.  by  agreement  between  the  owner 
of  the  freehold  and  the  builder  of  the  house  or  struc- 
ture, retain  the  character  of  a  chattel,  and  be  subject 
to  removal  and  sale  as  such.*^^  Thus,  though  the  own- 
ers of  land  have  on  it  a  fixture  and  its  appurtenances, 
intended  apparently  as  a  permanent  annexation  to  the 
realty,  yet  if  they  have  executed  a  chattel  mortgage 
on  such  fixture,  or  otherwise  treated  it  as  personal 
property,  they  and  all  persons  ac(]uiring  interests  un- 
der them,  with  notice,  are  bound  hj  their  acts,  and 

125  Fischer  v.  Tolinson.  106  Town.  181. 

126  Curtis  V.  Riddle.  7  Allen.  187;  AVolls  t.  Bannister,  5  Mass.  514; 
Fairbnrn  v.  Eastwood.  6  Mees.  &  W.  679;  Aldrich  r.  Parsons,  6  N. 
H.  555;  Osgood  v.  Howard.  6  Greenl.  452.  20  Am.  Dec.  322;  Curtiss 
V.  Hoyt.  19  Conn.  166;  Russell  v.  Richards.  1  Fairf.  429.  25  Am. 
Dec.  2.54;  Dame  v.  Dame,  38  N.  H.  429.  75  Am.  Dec.  195;  Wall  v. 
Hinds,  4  Gray.  27.'?.  64  Am.  Dec.  64;  Hunt  y.  Bay  State  Iron  Co..  97 
Mass.  283;  Crippen  v.  Morrison.  13  :Mich.  37;  Ford  r.  Cobb,  20  N.  Y. 
344;  Haven  v.  Emery,  33  N.  H.  66;  Merritt  v.  Tudd.  14  Cal.  70:  Teaflf 
T.  Hewitt.  1  Ohio  St.  584,  59  Am.  Dec.  634:  Hopewell  Mills  v. 
Taunton.  1.50  Mass.  519.  15  Am.  St.  Rep.  235;  Campbell  v.  Reddy, 
44  N.  J.  L.  224,  6  Am.  St.  Rep.  889. 


§11-1       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  4G2 

estopped  from  claiming  that  such  fixture  has  become 
a  part  of  the  realty/-'' 

Agreements  by  which  fixtures  remain  personal  prop- 
erty, though  of  such  a  character  and  so  attached  to  the 
freehold  as  to  become  a  part  thereof  but  for  the  stipu- 
lation of  the  parties  to  the  contrar}',  appear  not  to  be 
within  the  statute  of  frauds,  and  may,  therefore,  be 
enforced,  though  not  in  writing.*-^ 

While  a  land-owner  may,  by  his  agreement,  consent 
that  fixtures  attached  to  his  land  shall  retain  the  char- 
acter of  personal  property,  he  can  generally  make 
such  agreement  for  himself  only,  and  cannot  by  it  bind 
others  whose  title  is  paramount  to  his,  or  who  have 
liens  which  they  may  assert  against  it,  or  have  other- 
wise acquired  interests  under  him  without  notice  of 
his  agreement.  Such  an  agreement  is,  therefore,  not 
binding  upon  his  mortgagee.^^^  In  some  of  the  states, 
however,  it  is  held  that  such  an  agreement  will  be  en- 
forced, if  the  chattels  annexed  may  be  detached  with- 
out so  injuring  the  realty  as  to  make  it  substantially 
less  valuable  than  it  would  have  been  had  they  never 
been  attached  thereto,^^**  even  against  a  purchaser  of 
the  realty  without  notice.*^^  That  such  an  agreement 
cannot  be  enforced  against  a  subsequent  purchaser  or 

127  Horn  V.  Tnrlianapolis  S.  B..  125  Ind.  381,  231;  Canada  P.  S. 
S.  Co.  V.  Traders'  Bank.  29  Ont.  479. 

128  Tyson  v.  Post,  108  N.  Y.  217,  2  Am.  St.  Rep.  409. 

120  Rowan  V.  Anderson,  33  Kans.  264,  52  Am.  St.  Rep.  529;  Lan- 
don  V.  Piatt,  34  Conn.  517;  Case  M.  Co.  v.  Garvin,  45  Ohio  St.  289; 
Muir  V.  .Tones,  23  Or.  332;  Meagher  v.  Hayes,  152  Mass.  228,  23  Am. 
St.  Rep.  819;  Ridgeway  S.  Co.  v.  Way,  141  Mass.  557;  McFadden 
V.  Allen,  1.34  N.  Y.  489;  Cross  v.  Weare  C.  Co.,  1.53  111.  499,  4G  Am. 
St.  Rep.  902. 

130  Caniplx'll  V.  Bcddy,  44  N.  .T.  Eq.  244,  G  Am.  St.  Rep.  889;  Ger- 
man S.  L.  Soc.  V.  Weber.  16  Wash.  95. 

131  Russell  V.  Richards,  10  Me.  429,  25  Am.  Dec.  254;  Godard  v. 
Gould,  14  Barb.  662. 


4(33  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  114 

mortgagor  in  good  faith  aud  without  notice  .seems  too 
clear  for  controversy,***-  as  also  does  the  proposition 
that  a  purchaser  or  mortgagee,  with  notice,  is  bound 
by  the  agreement.^''*' 

Even  where  a  building  is  erected  under  such  cir- 
cumstances that  the  land-owner  may  retain  it,  he  may 
waive  his  rights  and  authcnize  its  removal;  and  when 
he  does  so  it  becomes  the  personal  property  of  the  ten- 
ant or  other  person  thus  authorized  to  remove  it,  and 
is  subject  to  levy  under  an  execution  against  him.*** 

Improvements  erected  on  public  lands  are  regarded 
as  private  property  for  most  purposes,  and  as  such  may 
be  levied  ui)on  and  sold.*""'  The  right  to  so  levy  and 
sell  is  manifestly  subordinate  to  the  power  of  the  gov- 
ernment to  manage  and  dispose  of  such  lands.  The 
title  of  the  purchaser  cannot,  therefore,  prevail  against 
the  United  States,  nor  against  its  patentee  if  the  im- 
provements were  so  attached  as  to  have  become  a  part 
of  the  realty.  The  fact  that  the  person  who  attaches 
fixtures  to  land  does  not  own  it  and  that  it  is  public 
land  of  the  United  States  does  not  prevent  such  fix- 
tures from  losing  their  character  of  personal  property 
for  the  purpose  of  levy  and  sale  under  execution.  Es- 
pecially is  this  true  when  the  object  of  the  annexation 

132  Knowlton  v.  .Tohnson.  37  Mich.  47;  Ridireway  S.  Co.  v.  Way, 
141  Mas8.  rt7u:  I.andon  v.  Piatt  34  Coun.  517;  vSinker  v.  Coniparet, 
<i2  Tex.  470;  Ice  etc.  Co.  v.  Lone  Star  etc.  Co.,  15  Tex.  Civ.  App 
694. 

1S3  W'iljrus  V.  Gettings,  21  la.  177;  Coleman  v.  Lewis,  27  Pa.  St. 
291;  Sullivan  v.  Jones.  14  S.  C.  362;  Lansing  I.  &  E.  W.  v.  Walker, 
91  Mich.  409;  Sayles  v.  Natural  etc.  Co.,  41  N.  Y.  S.  R.  856;  Horn 
V.  Indianapolis  etc.  Co.,  125  Ind.  381.  21  Am.  St.  Rep.  231. 

134  Foster  v.  Mabe,  4  Ala.  402;  Jewett  v.  Patridge,  12  Me.  243.  28 
Am.  Dec.  173. 

135  Switzer  v.  Skiles.  3  Oilm.  .529,  44  Am.  Dec.  723;  Turney  v. 
Saunders,  4  Scam.  527;  French  v.  Carr,  2  Gilm.  604. 


§  114       PEllSOXAL  PROPERTY  SUBJECT  TO  EXECUTION.  464 

is  apparently  permanent,  as  where  he  who  made  it  had 
located  a  mining  claim  on  the  laud  and  had  placed 
thereon,  securely  attached,  an  engine,  with  its  boilers- 
and  attachments,  for  the  purpose  of  operating  the 
claim.  The  sale  of  such  fixtures,  under  execution,  as 
personal  property,  passes  no  title  to  the  purchaser.^^* 
It  may  also  be  mentioned  that  the  relation  to  the 
ownership  of  the  soil  of  the  person  attaching  the  thing 
claimed  to  be  a  fixture  is  a  very  material  fact  in  deter- 
mining w^hether  such  thing  can  be  seized  and  sold  un- 
der a  fieri  facias  against  him.  If,  at  the  time  of  such 
attaching,  he  was  the  owner  of  the  freehold,  it  must 
be  a  very  clear  case,  indeed,  that  will  warrant  a  levy  on 
the  property  so  attached.  For  many  things  which,  if 
placed  on  the  soil  by  a  stranger  to  the  title,  would  be 
clearly  regarded  as  personal  property  will,  if  placed 
there  in  the  same  manner  by  the  owner,  be  regarded 
as  a  part  of  the  freehold.*^''  But  some  things  which 
were  fastened  to  the  realty  have  been  held  to  be  sub- 
ject to  execution  as  personalty  on  a  writ  against  the 
owner  of  the  freehold.  This  is  particularly  the  case 
with  machinery  used  for  manufacturing,  when  it  can 
be  disconnected  without  any  material  injury,  and  when 

136  Roseville  A.  M.  Co.  v.  Iowa  G.  M.  Co.,  15  Colo.  20,  22  Am.  St. 

Kep.  373. 

137  Amos  and  Ferartl  on  Fixtures,  323;  Winn  v.  Ingleby,  5  Barn. 
&  Aid.  625;  1  Do\vl.  &  R.  247;  I'laee  v.  Fag?.  4  Man.  &  R.  277; 
Steward  v.  Lombe,  1  Ball  &  B.  506:  4  Moore,  281;  Snodeker  v.  W'ar- 
rinjr.  12  N.  Y.  170;  Minsliall  v.  I.loyd,  2  Mees.  &  W.  4.50;  Murphy 
&  Hurlston.  125;  1  .Tur.  3.'?6;  Mackintosh  v.  Trotter,  3  Mees.  &  W. 
184:  Voorhis  v.  Freeman,  2  Watts  &  S.  116,  37  Am.  Dee.  490;  Brown 
on  Fixtures,  sec.  172-177  a;  Corliss  v.  McLagiu,  2'J  Me.  115;  W'inslow 
V.  Merchants'  Insurance  Co.,  4  Met.  30C,  38  Am.  Dec.  368;  Trull  v» 
Fuller,  28  Me.  545;  Morgan  v.  Arthurs,  3  Watts,  140;  Oves  v.  Ogles- 
by,  7  Watts.  lOfJ;  Union  Bank  v.  Emerson,  15  Mass.  1.59;  Bishop  v. 
Bishop,  11  X.  Y.  123,  62  Am.  Dec.  68;  Leonard  v.  Clough,  133  N.  Y. 
292. 


465  PERSONAL  PRUPERTY  SUBJECT  TO  EXECUTION.        §  lU 

it  was  attached  only  for  the  purpose  of  keeping  it  firm 
and  steady,  and  enabling  its  use  to  be  more  bene- 
ficial.^*"* JUit  even  in  snch  a  case  it  seems  that  the 
intent  of  the  owner  in  attaching  tlie  inadiinciy  must 
be  considered;  and  if  it  appears  tliat  he  attached  the 
property  to  the  realty  with  a  view  that  it  should  remain 
there  permanently,  it  must  be  treated  as  real  estate.^'*'** 
This  intention  is  to  be  "inferred  from  the  nature  of  the 
article  al'lix^Ml.  the  relation  and  situation  of  the  party 
making  the  annexation,  the  structure  and  mode  of  an- 
nexation, and  the  purpose  or  use  for  which  the  annexa- 
tion has  been  made."  **** 

13S  Toliins  V.  Francis.  3  Vt.  425,  23  Am.  Doc.  217;  Sturgis  v.  War- 
ren, 11  Vt.  435;  Swift  v.  Thompson,  9  Conn.  63.  21  Am  Dec.  71S;  Bart- 
lett  V.  Wood.  32  Vt.  372;  Fnllam  v.  Stearns,  30  Vt.  443;  Hill  v.  Weut- 
w-ortli,  2S  \t.  428;  Gale  v.  Ward,  14  Mass.  352,  7  Am.  Dec.  223;  Cre.s- 
son  V.  Stout,  17  .Toluis.  IIG.  8  Am.  Dec.  373;  Farrar  v.  Chauffetete, 
5  Denio,  527;  Vanderpoel  v.  Van  Alien,  10  Barb.  l.")7:  Murdock  v. 
Cifford.  18  N.  Y.  28;  Freelaud  v.  Soutlnvortli.  24  Wend.  191.  See 
Hutchinson  v.  Kay,  23  Beav.  413;  Haley  v.  Hanimersly,  3  De  Ges., 
F.  &  J.  587;  7  .Tur.,  N.  S.  7G5;  30  L.  .1.  Ch.  771;  9  Week.  Rep.  5G2;  4 
L.  T..  N.  S.  2G9.     See  note  to  Pierce  v.  CJeorge,  11  Am.  Rep.  314. 

i:'»  Potter  v.  Cromwell.  40  N.  Y.  287,  100  Am.  Dec.  485;  McKim 
V.  Mason.  3  :\rd.  Ch.  ISO;  Pierce  v.  George,  108  Mass.  78,  11  Am. 
Rep.  310;  Voorheos  v.  ^IcGinnis.  48  N.  Y.  278;  Richardson  v.  Cope- 
laud.  G  Gray,  530.  GO  Am.  Dec.  424;  Teaff  v.  Hewitt,  1  Ohio  St.  530, 
59  Am.  Dec.  G.34;  Stockwell  v.  Cauipl)ell.  39  Conn.  302,  12  Am.  Rep. 
393;  Alvord  C.  JI.  Co.  v.  Gleason,  3G  Conn.  8G;  Capen  v.  Peckham,  35 
Conn.  88;  Plaveus  v.  Germauia  etc.  I.  Co..  120  Mo.  403,  45  Am.  St.  Rep. 
570;  ^lorotock  I.  Co.  v.  Rodefer.  92  Va.  747,  53  Am.  St.  Rep.  84G; 
Roseville  A.  M.  Co.  v.  Iowa  G.  M.  Co.,  15  Colo.  29,  22  Am.  St.  Rep. 
373;  McFaddou  v.  CraAvford.  3G  W.  Va.  G71,  32  Am.  St.  Rep.  894. 

i-«o  Teaff  V.  Hewitt.  1  Ohio  St.  530,  59  Am.  Dec.  634.  The  rolling 
stock  of  a  railroad  must,  in  Illinois,  be  sold  as  real  estate.  Palmer 
V.  Forbes.  23  111.  301;  Hunt  v.  Bullock,  23  111.  320;  Titus  v.  Mabee, 
25  III.  257.  In  New  York  and  Ohio  it  may  be  sold  as  i!>ersonal  prop- 
erty. Beardsley  v  Ontario  Bank.  31  Barb.  619;  Stevens  v.  B.  & 
N.  R.  R.  Co..  31  Barb.  .590;  Bement  v.  P.  &  M.  R.  R.  Co..  47 
Barb.  104;  Randall  v.  Eiwell.  11  Am.  Rep.  47,  52  N.  Y.  522; 
Hoyle  V.  P.  &  M.  Co..  54  N.  Y.  314,  13  Am.  Rep.  .595:  Coe  v.  R. 
R.  Co.,  10  Ohio  St.  372,  75  Am.  Dec.  518.  In  New  Hampshire  it  may 
Vol.  I.— 30 


§  lU       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  4G6 

The  circumstances  in  which  fixtures  were  attached 
to  the  soil  maj  be  such  as  to  show  clearly  that  no  per- 
manent annexation  was  intended.  If  so,  they  remain 
personal  property.  Thus,  where  the  contractors  by 
whom  a  railroad  was  built  laid  down  sidetracks,  fas- 
tened to  the  main  track  by  frogs,  and  used  in  transport- 
ing gravel,  and  left  such  tracks  in  place  on  the  request 
of  the  president  of  the  road,  as  a  matter  of  accommo- 
dation, on  his  assurance  that  the  materials  would  there- 
after be  delivered  to  them  free  of  expense,  such  tracks 
were  held  to  be  subject  to  execution  as  the  personal 
property  of  the  contractors,  on  the  ground  that  they 
"were  laid  entireh^  for  temporary  and  not  permanent 
purposes,"  were  not  designed  for  use  in  any  particular 
locality,  and  were  "a  part  of  the  means  used  in  con- 
structing a  road,  but  are  not  a  part  of  the  structure, 
and  because"  it  might  as  well  be  contended  that  the 
scaffolding,  ladders,  and  appliances  used  in  construct- 
ing, which  a  mechanic  temporarily  leaves  about  a  newly 
finished  house,  become  the  property  of  the  householder, 
so  as  to  pass  as  fixtures  upon  his  conveyance  of  the 
real  estate.^^^  Even  with  the  tests  here  prescribed,  it 
must  be  very  difficult  for  an  officer  or  creditor  to  de- 
be  sold  as  personalty  when  not  in  use.  Boston,  C.  &  M.  R.  R.  v. 
Gilmore,  37  N.  11.  410,  72  Am.  Dec.  3oG.  In  several  cases  the  rolling 
stock  of  railroiuls  has  been  regarded  as  fixtures,  so  as  to  pass  to  a 
mortgasee  of  tlie  realty.  Pennock  v.  Coe,  23  How.  117;  Strickland 
V.  Parker,  54  Me.  2G3;  Minnesota  Co.  v.  St.  Paul  Co..  2  Vv^all.  644; 
Phillips  V.  Wiuslow,  18  B.  Mon.  431,  68  Am.  Dec.  729.  Where,  a 
railroad  company  constructed  a  bridge,  being  a  part  of  its  road, 
and  built  with  stone  piers  and  abutments,  and  subsequently  aban- 
doned the  road,  It  was  held  that  the  piers  and  abutments  did  not 
pass  to  the  owner  of  the  land.  Wagner  v.  C.  &  T.  R.  R.  Co..  22 
Ohio  St.  503.  10  Am.  Rep.  770;  Corwin  v.  Cowan.  12  Ohio  St.  620; 
Northern  C.  R.  W.  Co.  v.  Canton  Co.,  30  Md.  347. 

141  Fifield  V.  Me.  C.  R.  R..  62  Me.  81;  Coos  Bay  etc.  Co.  v.  Siglin 
(Or.),  53  Pac.  504;  Bellamy  v.  Davy  (1891),  3  Ch.  540. 


467  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  111 

termine  what  may  be  seized  as  personal  estate.  In 
fact,  the  judges,  with  all  their  oppoiluuity  for  mature 
deliberation,  and  all  their  skill  in  precision  and  exact- 
ness of  expression,  have  not  jet  been  able  to  make  the 
law  of  fixtures  harinouious  or  well  understood.  It 
would,  therefore,  be  marvelous  if  the  ministerial  oflfi- 
cers  of  the  court,  acting  in  the  haste  of  pressing  emer- 
gencies, did  not  often  err  in  attempting  to  conform  to 
this  law.  Even  the  term  "fixtures"  is  popularly  em- 
ployed with  diverse  significations — sometimes  to  desig- 
nate a  chattel  so  attached  to  the  realty  that  it  cannot 
be  removed,  and  sometimes  to  designate  a  chattel  so 
attached  that  it  can  be  removed.  But  in  the  vast  ma- 
jority of  cases  in  which  the  law  of  fixtures  is  involved, 
the  alleged  fixture  has  been  affixed  by  the  lessee  or 
Ucensee.^*^  To  determine  whether  a  chattel  affixed 
by  the  lessee  or  licensee  can  be  seized  on  execution,  we 
have  only  to  ascertain  whether  he  can  lawfully  remove 
it.  For  whatever  rights  and  interests  the  lessee  has 
are  subject  to  execution  against  him.  The  law  of  fix- 
tures has  been  gradually  modified  in  favor  of  lessees, 
in  order  that  trade  and  manufactures  might  be  encour- 
aged. "Things  set  up  by  a  lessee  during  his  tenancy 
for  the  purposes  of  his  trade"  remain  personal  prop- 
erty.^^^  Tenants  occupying  property  for  the  purposes 
of  agriculture  were  less  favored  than  occupants  for  the 
purix)ses  of  trade.^*^  The  tendency  of  the  more  re- 
cent decisions  is  in  favor  of  putting  agricultural  and 

i«ing:alls  v.  St.  Paul  etc.  Co..  39  Minn.  479.  12  Am.  St.  Rep.  070; 
Laird  v.  Railroad.  G2  N.  H.  2,54,  13  Am.  St.  Rep.  504. 

i*^  Hill  on  Fixtures,  sec.  17;  Pillow  v.  Love,  5  Hayw.  109;  Lemar 
V.  Milns,  4  W^atts,  :'>;'.0;  Raymond  v.  White.  7  Cow.  310;  Ileermance 
V.  Vernoy,  6  Johns.  ."»;  Reynolds  v.  Shuler,  5  Cow.  323;  Douuewald 
V.  Turner  R.  E.  Co.,  44  Mo.  App.  350. 

1"  Elwes  V.  Maw,  3  East,  38, 


§  114       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  46S 

other  tenants  upon  an  equality,  in  this  respect,  with 
tenants  for  the  purj^oses  of  trade;  and  of  determining 
the  character  of  alleged  fixtures  by  considering  their 
nature,  and  the  nature  and  intent  of  their  annexa- 
tion,^'*'^ and  the  injury  which  would  be  done  to  the  free- 
hold by  their  removal,  rather  than  by  considering  the 
business  in  aid  of  w^hich  they  have  bc^en  annexed/*** 
Domestic  and  ornamental  fixtures,  being  such  as  are 
erected  or  affixed  by  the  tenant  for  his  convenience  or 
that  of  his  family,  or  for  the  purpose  of  gratifying  a 
taste  for  the  beautiful,  retain  their  character  of  per- 
sonal property',  unless  their  removal  would  occasion 
some  material  injury  to  the  freehold.  Among  the  do- 
mestic and  ornamental  fixtures  which  so  retain  their 
character  as  personalty  are  "all  fixtures  put  up  as  fur- 
niture, such  as  hangings,  tapestry,  beds  fastened  to  the 
ceiling,  blinds,  chimney-glasses,  chimney-pieces,  clock- 
cases,  coffee-mills,  looking-glasses,  pier-glasses,  pic- 
tures, shelves,  cabinets,  chimney  backs,  cupboards, 
desks  and  drawers,  frames,  gas-pipes,  grates,  iron 
chests  and  iron  ovens,  iron  safes,  jacks,  lamps,  pumps, 
ranges,  sinks,  turret-clocks,  wainscots  fixed  by  screws, 
window-sashes  not  being  bedded  into  frames,  but 
merely  fastened  by  laths  and  nailed  across  frames  and 
curtains."  **'" 

145  Meiffs'  Appeal.  62  Pa.  St.  28.  1  Am.  "Rep.  372. 

146  Dubois  T.  Kelly.  10  Barb.  41)6;  Van  Ness  v.  Pacard.  2  Pet.  1.37; 
Harkness  v.  Sears.  2fi  Ala.  493.  02  Am.  Dee.  742:  WHiitney  v.  Bras- 
tow,  4  Pick.  310;  Holmes  v.  Tremper.  20  .Tolms.  20.  11  Am.  Doc. 
238;  Rex  v.  Otley.  1  Barn.  <Sr  Aflol.  101;  Wood  v.  Hewett.  8  Q.  B. 
913:  10  Jur.  .300;  1.5  L.  J.  Q.  B.  247;  Mant  v.  Collins,  10  Jur.  300;  15 
L.  .T.  O.  B.  248. 

147  Crocker  on  Sheriffs,  sec.  401;  Amos  and  Ferard  on  Fixtures, 
64-03;  Hill  on  Fixtures,  sees.  29-30;  2  Smith's  Lead.  Cas.  242.  See 
also,  as  to  domestic  and  ornamentnl  fixtures:  for  window-sashes. 
Rex   V.  Hedges,  1  Leach  C.  C.  201;  2  East  P.  C.  590,  note;  for  pumps. 


4C'J 


PERSONAL  rilOPERTY  SUBJECT  TO  EXECUTION.        §  111 


It  must  be  reniembcrcd  that  the  tenant's  right  to  his 
fixtures  may  be  forfeited  by  his  failure  to  remove  them 
while  he  is  entitled  to  do  so.  When  he  ceases  to  be  a 
tenant,  he  ceases,  in  the  absence  of  any  agreement  pre- 
serving his  rights,  to  have  any  interest  in  the  fixtures, 
except  when  his  lease  was,  without  his  fault,  termin- 
ated by  the  happening  of  some  uncertain  contingency. 
Ordinarily,  he  must  remove'  the  fixtures  during  his 
term.  The  period  within  which  he  may  make  the  re- 
moval may  be  prematurely  terminated  by  the  forfeit- 
ure of  his  lease;  or  it  may  be  prolonged  by  the  extension 
of  his  lease,  or  by  stipulation  with  his  landlord.  But 
where  no  special  stipulations  to  the  contrary  have 
been  made,  and  the  term  is  for  a  certain  and  definite 
period,  a  lessee  may  remove  his  fixtures  while  he  is 
still  entitled  to  regard  himself  as  a  tenant,  and  he  can- 
not remove  them  afterward."^     By  his  failure  to  exer- 

AlcCraekcn  v.  Hall.  7  Ind.  30;  Grymes  v.  Boweren,  4  Moore  &  P. 
143;  6  Biug.  437;  for  cornices,  Avery  v.  Chesloy,  5  Nev.  &  M.  372, 
3  Ad.  &  E.  75;  1  Har.  &  W.  283;  for  chimney-pieces,  Leach  v. 
Thomas,  7  Car.  &  P.  328;  Bishop  v.  Elliott,  11  Ex.  113;  24  L.  J.  Ex. 
22!);  for  show-case  and  drawers,  Cross  v.  Marston,  17  Vt.  .5.33,  44 
Am.  Dec.  353;  gas-fixtures  and  setting-stools.  Lawrence  v.  Kemp,  1 
Duer,  303;  Vaughen  v.  Haldeman,  33  Pa.  St.  522,  75  Am.  Dec.  G22; 
chimney-pieces,  wainscots,  and  beds  fastened  to  ceiling.  Ex  parte 
Qiiincy,  1  Atk.  477;  hangings  and  looking-glasses.  Beck  v.  Rebow.  1 
P.  Wms.  94;  stoves  and  grates  fixed  into  the  chimney,  and  a  cup- 
board standing  on  the  ground  supported  by  holdfasts.  King  v.  St. 
Dunstans.  4  Barn.  &  C.  6SG;  book-case  screwed  to  the  wall.  Birch  v. 
Dawson.  2  Ad.  &  E.  37. 

14S  Wei'ton  v.  Woodcock,  7  Mees.  &  W.  14;  Dudley  v.  Warde.  Amb. 
113:  Rofley  v.  Henderson.  17  Q.  B.  574;  IG  Jur.  84;  21  L.  .7.  Q.  B.  49; 
Davis  V.  Moss,  38  Pai  St.  346;  Leader  v.  Homcwood,  5  Com.  B., 
N.  S.,  54G:  4  Jur..  N.  S.  10G2;  27  L.  J.  C.  P.  316;  Heap  v.  Barton.  12 
Com.  B.  274;  16  Jur.  891;  21  L.  J.  C.  P.  153;  Storer  v.  Hunter,  3  Barn. 
&  C.  368;  Lee  v.  Risdon.  7  Taunt.  188;  Overton  v.  Williston,  31  Pa. 
St.  155;  Lyde  v.  Russell,  1  Barn.  &  Adol.  394;  White  v.  Arndt.  i 
Whart.  91:  State  v.  Elliott,  11  N.  H.  ."i40;  Whipley  v.  Dewey.  8  Cal. 
36;  Merritt  v,  Judd,  14  Cal.  59;  Fitzherbert  v.  Shuw,  1  H.  Black.  258; 


§  114       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  470 

else  his  privilege  of  removal  within  the  time  prescribed 
by  law,  his  fixtures  become  a  portion  of  the  real  prop- 
erty of  the  landlord,  and,  of  course,  are  no  longer  sub- 
ject  to  execution  against  their  original  owner/'*'* 

A  tenant's  right  to  his  fixtures  seems  to  be  depend- 
ent upon  his  continuing  rightfully  in  possession  under 
the  lease  existing  during  the  term  in  which  they  were 
constructed  or  affixed,  or  during  extensions  of  such 
lease;  for  he  may  rightfully  remain  in  possession  of 
the  property  without  retaining  any  rights  acquired  un- 
der the  lease  by  virtue  of  which  he  originally  entered. 
Hence,  if  the  landlord  demands  that  the  tenant  quit 
possession,  or  in  any  other  manner  terminates  the 
lease,  but  grants  another  to  the  same  tenant,  which  is 
silent  respecting  the  improvements  or  other  fixtures 
placed  on  the  property  by  the  tenant  during  the  orig- 
inal lease,  his  right  to  remove  them  after  its  expiration 
is  lost.*^" 

Where  a  tenant  retains  the  right  to  remove  his  fix- 
tures, they  may  be  levied  on  and  sold  as  personal  prop- 
erty under  an  execution  against  him.  Creditors  can 
acquire  no  other  rights  in  them  than  the  tenant  him- 
self has.  Hence,  they  must  complete  the  levy  and  sale, 
and  make  the  removal  of  the  fixtures  while  the  tenant 

Kins  V.  Wik'onil),  7  Barb.  2G3;  Amos  and  Ferard  on  Fixtures.  94 
and  folIoAving.  The  opinion  of  Lord  Kenyon  in  Penton  v.  Robart  2 
East,  88,  that  the  lessee  could  lawfully  remove  his  fixtures  while 
he  remained  in  possession,  has,  as  will  be  seen  from  examining  the 
above  autliorities.  ceased  to  be  regarded  as  law. 

149  Bcdlow  V.  New  Yorlv  etc.  Co.,  112  N.  Y.  263;  Beloit  S.  N.  B.  v. 
Merrill,  r/J  :Miss.  .501. 

150  Wright  V.  MacDonnell  (Tex.  Civ.  App.),  27  S.  W.  1024:  Hed- 
derich  v.  Smith,  103  Ind.  203,  o3  Am.  Rep.  509;  Sanitary  T^ist.  v. 
Cook,  1(59  111.  184,  61  Am.  St.  Rep.  161;  Carlin  v.  Ritter.  68  Md.  478, 
6  Am.  St.  Rep.  467;  contra,  Kerr  v.  Kingsbury,  39  Micli.  150,  35 
Am.  Rep.  362. 


471  PERSONAL  PRorERTY  .SUBJECT  TO  EXECUTION.        §  H:> 

himself  retains  the  right  of  suL-h  removal.  Otherwise, 
anjaction  thej  maytake  is  entirely  inoperative  against 
the  landlord. ^'*^  Of  course,  after  the  levy  has  been 
made,  tlie  tenant  cannot,  by  his  voluntary  surrender 
of  the  property  or  relinquishment  of  his  lease,  or  other 
act  in  apj)ar(nt  collusion  with  his  landlord,  defeat  the 
lien  of  his  creditor  and  the  right  to  make  it  elfective 
by  a  sale  of  the  property  subject  thereto.  ''Further- 
more, as  a  general  rule,  the  creditor  who  attaches  or 
levies  ni)on  removable  fixtures  as  such,  or  the  vendee 
or  mortgagee  of  removable  fixtures  as  such,  must  re- 
move them  from  the  premises  while  the  tenant's  right 
to  r(^niove  them  exists.  In  other  words,  the  creditor, 
vendee,  or  mortgagee,  in  the  cases  supposed,  acquires 
no  greater  rights  in  this  respect  than  the  tenant  under 
whom  they  claim.  If,  pending  the  attachment  or  lev}-, 
or  before  the  fixtures  are  severed  and  removed  by  the 
vendee  or  mortgagee,  the  rights  of  the  tenant  in  and 
to  the  fixtures  cease,  then,  as  a  general  rule,  the  rights 
of  those  claiming  under  him  also  cease.  This  rule  has 
been  applied  and  recognized  in  numerous  cases,  and, 
during  the  evolution  and  during  the  present  condition 
of  the  law  concerning  'fixtures,'  seems  to  have  been, 
and  still  seems  to  be,  necessary  and  reasonable."  ^" 

OF  THE    ESTATES    AND    INTERESTS  IN    PERSONAL    PROP- 
ERTY SUBJECT  TO  EXECUTION. 

§  115.  The  Real  and  not  the  Apparent  Interest  of  the 
Debtor  may  be  Taken.— in  treating  of  the  lien  of  judg- 
ments, we  have,  in  another  work,  said:  "Whenever  a 

151  Freidlandor  v.  ITpwitt,  30  Neb.  7S3;  Donnewald  v.  Turner  R. 

E.  Co.,  44  Mo.  App.  sr.n. 

"2  Morey  v.  Hoyt,  62  Conn.  542. 


§  115        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  472 

lien  attaches  to  any  parcel  of  property,  it  becomes  a 
cliarge  on  the  precise  interest  which  the  judgment 
debtor  has,  and  no  other.  The  apparent  interest  of 
the  debtor  can  neither  extend  nor  restrict  the  operation 
of  the  lien,  so  that  it  shall  encumber  any  greater  or 
less  interest  than  the  debtor  in  fact  possesses."  ^^ 
This  is  equally  true  of  the  lieu  of  an  execution,  and  of 
the  interest  acquired  by  the  officer  by  reason  of  his 
levy.  A  transfer  may  be  actually  or  constructively 
fraudulent,  and  may  on  that  account  be  void  as  against 
creditors,  while  it  is  valid  against  the  transferrer;  or 
it  may,  in  some  states,  be  void  as  against  creditors  for 
want  of  delivery.  In  these  cases,  it  is  evident  that  an 
execution  may  reach  and  transfer  a  greater  interest 
than  that  held  by  the  defendant.  With  these  excep- 
tions, it  is  believed  that  no  interest  is  subject  to  exe- 
cution beyond  w^hat  the  defendant  actually  owns,  al- 
though his  apparent  may  be  much  greater  than  his 
real  ownership.^^*  Hence,  where  a  debtor  is  garn- 
ished, he  must  be  released  on  showing  that,  before 
the  service  of  the  writ,  his  creditor  had  assigned  the 
debt,*^^  or  that,  by  agreement,  the  debt  was  to  be  paid 
to  the  creditor's  creditor.^'***  It  is  not  essential  that 
the  debtor  should  be  notified  of  the  assignment  prior 
to  the  levy.^*'*"  A  draft  takes  precedence  over  a  sub- 
sequent attachment,  though  not  prt-sented  until  after 

153  Freeman  on  Judgments,  sees.  356,  357;  Walton  v.  Hargroves, 
42  Miss.  18,  97  Am.  Dec.  429. 

154  WbitAvorth  v.  Gaugaiu,  13  L.  J.,  N.  S.,  Cb.  288;  3  Hare,  410. 

155  Adams  v.  Robinson,  1  Piclc.  461;  Weed  v.  Jewett,  2  Met.  608, 
37  Am.  Dec.  115;  IJttlofield  v.  Smitb,  17  Me.  327;  King  v.  Murpliy. 
1  Stew.  228.     See  §  170. 

156  Lovely  v.  Caldwell,  4  Ala.  684;  Black  v.  Paul,  10  Mo.  103,  45 
Am.  Dec.  353. 

157  Pellman  v.  Hart,  1  Pa.  St.  203. 


473  PERSONAL  PllOI'EKTY  .SUBJECT  TO  EXECUTION.        s  115 

the  writ  is  levied,*''**  aud  the  interestof  a  plt'dj-ee  of 
shares  of  stock  of  a  corporation  cannot  be  divested 
by  an  execution  sale  under  a  writ  against  the  i)le(l;;or, 
althouj^h  the  pledge  was  not  evi(l<*ncid  by  any  writing, 
nor  noted  on  the  books  of  the  corporation,  and  the  pur- 
chaser was  without  notice  thereof.'"'"  On  the  other 
iiand,  it  is  equally  well  settled  that  the  real  interest 
of  a  defendant  is  subject  to  execution,  though  he  may 
not  appear  to  have  any  interest;  or,  more  properly 
speaking,  though  the  evidence  of  his  title  may  be  con- 
cealed. Uence,  in  order  to  subject  real  estate  to  execu- 
tion, it  is  not  necessary  to  show  that  the  defendant's 
evidence  of  title  is  on  record.  It  is  wholly  immaterial 
Avhether  the  interest  of  the  defendant  appears  from  the 
records  or  not.^****  What  is  here  said  about  the  real 
interest  of  the  defendant  being  subject  to  execution, 
rather  than  the  apparent  interest,  meets  with  an  ap- 
parent exception  through  the  operation  of  the  laws 
for  the  registration  of  instruments  affecting  the  title 
to  real  estate.  Under  those  laws,  a  purchaser  in  good 
faith,  who  records  his  convcA'ance,  is  entitled  to  pre- 
cedence over  a  prior  conveyance  or  encumb*'ance  of 
which  he  had  no  notice,  actual  or  constructive.  A 
.  purchaser  at  execution  sale  may  also  be  a  purchaser 
in  good  faith,  and  may  therefore  obtain  a  greater  or 
better  title  than  the  defendant  in  fact  held.**"  This  is 
because  of  the  effect  of  the  registry  laws,  and  not  be- 
cause any  greater  interest  than  that  held  by  defendant 

188  Nesmitli  v.  Drum.  8  Watts  &  S.  9,  42  Am.  Deo.  260. 

ir,9  Tort  Townsend  N.  B.  v.  Port  Townsend  G.  &  F.  Co.,  G  "Wash. 
597. 

i»o  Vance  v.  McXairy,  3  Yers.  171.  24  Am.  Dec.  ."m3;  Ready  v. 
Brajrjr,  1  Head,  "ill;  Shields  v.  INIitchell.  10  Yerir.  1:  I.atlirop  v. 
Brown.  23  Iowa.  40:  Nlantic  Bank  v.  Dennis,  37  111.  3S1;  Kieliter  v. 
Selin,  S  Sersr.  iS:  15.  425. 

161  See  post,  §  336. 


§  IIG       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  474 

was  subjoct  to  execution;  for  until  the  moment  when 
the  purchaser  in  good  faith  pays  his  money,  notice 
may  be  given  of  the  prior  unregistered  conveyance  or 
encumbrance,  and  the  levy  and  sale  thus  made  ineffect- 
ive as  against  it. 

§  116.  Equitable  Interests. — By  the  common  law, 
an  equitable  interest  in  x^^rsonal  properly  could  not  be 
seized  and  sold  under  a  writ  of  fieri  facias.  Hence, 
wherever  the  common-law  rule  has  not  been  changed 
by  statute,  the  sheriff  is  not  authorized  to  seize  and 
sell  any  chattels,  unless  the  defendant  in  execution  has 
the  legal  as  well  as  the  equitable  title  thereto. **^^  "It 
was  a  principle  of  the  common  law,  steadily  main- 
tained, that  an  equitable  interest  in  chattels  could  not 
be  sold  under  execution.  A  sheriff  must  actually  seize 
the  property  on  a  fieri  facias  before  he  can  sell."  ^^^ 
"I  do  not  know  of  any  case  in  which  a  court  of  equity 
has  considered  an  execution  at  law  as  binding  an  equi- 
table right.  The  idea  is  altogether  inadmissible."  ^^ 
AVhen  an  assignment  is  made  to  certain  persons,  for 
the  purpose  of  enabling  them  to  sell  the  property  as- 
signed, and  with  the  proceeds  to  pay  the  assignor's  lia- 
bilities, and  reserving  to  the  assignor  such  property  as 
may  remain  after  the  debts  have  all  been  paid,  he  has 

162  Boyce  v.  Smith.  IG  Mo.  HIT;  ^NIcLeary  v.  Snider.  1  West.  L.  M. 
270;  McNairy  v.  Eastland.  10  Yerg.  .810;  Lystor  v.  Dolland,  1  Yes. 
Jr.  431;  3  Bro.  C.  C.  478;  WMlson  v.  Carver.  4  Hayw.  90;  Badlam  v. 
Tudver,  1  Pick.  399;  11  Am.  Dee.  202;  Benton  v.  Pope,  5  Humph. 
392;  Dargan  v.  Richardson,  Dudley  (S.  C).  G2;  Martin  v.  Jewell.  37 
Md.  .5.30;  Brown  T.  Wood,  6  Rich.  Eq.  15.5;  Rose  v.  Bevan.  10  Md. 
4G0.  09  Am.  Dec.  170;  Wylie  v.  White,  10  Rich.  Eq.  294;  Shute  v. 
Harder,  1  Yerjr.  3,  24  Am.  Dec.  427;  Roads  v.  Symmes,  1  Ohio,  281.  13 
Am.  Dec.  G21:  Van  Norman  v.  Jacl^son  Circuit  Ct.,  45  Mich.  204; 
Gypsum  etc.  Co.  v.  Kent.  97  Mich.  G31. 

1C.3  Yeldcll  V.  Barnes.  15  Mo.  434. 

164  Hendricks  v.  Robinson,  2  Johns.  Ch.  312. 


475  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  116 

no  interest  subject  to  execution.**'^  In  Missouri  it  has 
been  held  that  one  who  was  the  owner  of  an  equitable 
interest  in  stocks,  and  who  also  had  the  rij^ht  to  retain 
possession  for  a  definite  period  of  time,  had  an  iuterest 
in  such  stocks  subject  to  execution.*""  In  some  of  the 
states  the  common-law  rule  has  been  abrogated,  and 
has  been  substituted  bj  statutory  provisions  subjecting 
equitable  as  well  as  legal  interests  to  execution  and 
forced  sale  at  law.*"'^  The  common-law  rule  was  sus- 
tained by  the  theory'  that  at  law  only  legal  interests 
could  be  recognized  and  enforced.  It  was  not  founded 
on  any  tenderness  for  equitable  titles,  but  rather  upon 
a  desire  to  ignore  them  altogether.  By  proceedings 
in  equity,  equitable  interests  could  always  be  made  to 
contribute  to  the  satisfaction  of  a  judgment  against 
the  ow^ner.*"**  If  such  interests  are  to  be  subjected  to 
forced  sale,  it  is  better  to  allow  them  to  be  taken  under 
fieri  facias  than  to  compel  the  creditor  to  resort  to  a 
separate  suit;  for  the  suit,  after  subjecting  both  par- 
ties to  delay  and  expense,  without  any  compensatory 
advantages,  does  precisely  what  might  long  before 
have  been  done  under  a  fieri  facias. 

Though,  by  statute,  equitable  interests  in  personal 
property  have    been  made    subject  to  execution,  this 

iw"^  Sprinkle  v.  Martin.  06  N.  C.  5n;  McKoithan  v.  Wallvor.  n<5  N.  C. 
95;  ^YilIves  v.  Ferris,  5  Johns.  345.  4  Am.  Doc.  oCA;  Scott  v.  Scholpy, 
8  East.  467;  Biscoe  v.  Royston,  18  Ark.  508;  Tope  v.  Bo.vd.  22  Ark. 
535;  Brown  v.  (Graves,  4  Hawks.  342:  Metcalf  v.  Scholey,  2  Bos.  &-  P. 
N.  R.  401;  Williamson  v.  Clark.  2  Miles.  15?,. 

166  Foster  v.  Potter,  37  Mo.  525;  Tufts  v.  Volkeningr,  51  ^fo.  App. 
7. 

167  :\Ii,l(llotown  Savings  Rank  v.  Jarvis.  33  Conn.  372;  Eastland  v. 
Jordan.  3  Bibb.  186;  Samuel  v.  Salter.  3  Met.  (Ky.)  2,19. 

168  Pendleton  v.  Perkins.  49  Mo.  565;  Edmeston  v.  Lyde.  1  Paipe, 
637;  Tarbell  v.  Grifffrs,  3  Paige.  207.  23  Am.  Dec.  790:  nadden  v. 
Spader,  20  Johns.  554;  Williams  v.  Hubbard,  Walker's  Ch.  28;  Bige- 
low  V.  Congregational  Society.  11  Vt.  283. 


§  117       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  476 

will  not  prevent  the  creation  of  what  are  commonly 
known  as  spendthrift  trusts,  hv  virtue  of  which  the 
property  is  vested  in  a  trustee,  who  is  given  a  dis- 
cretionary authority  to  apply  the  income,  or  so  much 
as  may  be  necessary,  to  the  support  of  the  beneficiary. 
While  an  owner  of  property  is  not  permitted  to  create 
a  trust  in  his  own  favor,  which  will,  in  effect,  entitle 
him  to  the  beneficial  enjoyment  of  the  projierty,  irre- 
spective of  the  demands  of  his  creditors,  this  rule  is 
not  usually  deemed  applicable  to  the  creation  of  a  trust 
in  favor  of  a  third  person,  accompanied  by  a  provision 
therein  which  shall  secure  the  object  of  the  trust  from 
impairment  at  the  instance  of  creditors  of  the  bene- 
ficiary proceeding  against  him  by  attachment  or  exe- 
cution. ^'^'^ 

§  117.  Mortgagor's  Interest.— The  equity  of  redemp- 
tion held  by  a  mortgagor  of  chattels  is  clearly  an  equi- 
table interest,  and,  according  to  the  rules  stated  in  the 
preceding  section,  would  not  be  subject  to  execution.^''** 
Hence,  unless  some  statute  has  been  enacted  making 
mortgaged  chattels  subject  to  execution,  the  better 
opinion  is  that  the  mortgagor's  interest  therein  cannot 
be  reached  by  any  levy  and  sale  under  a  writ  against 
him.^^^ 
'    Where  the  common-law  rule  still  prevails,  the  mort- 

169  Seymour  v.  McAvoy.  121  Cal.  438;  Slattery  v.  Wason,  l.')l  Miss. 
200.  21  Am.  St.  Rep.  448:  Partridge  v.  Cavendar,  96  Mo.  452;  Lam- 
pert  V.  Haydel.  96  Mo.  439,  9  Am.  St.  Rep.  3.')8;  Patterson  v.  Cald- 
well. 124  Pa.  St.  4.54;  Estate  of  Beck.  1.33  Pa.  St.  .51.  19  Am.  St. 
Rep.  023;  Garland  v.  Garland,  87  Va.  7.58.  24  Am.  St.  Rep.  G82;  post 
§  189a. 

iTo  Scott  V.  Scholey,  8  East  407;  Metealf  v.  Scholey.  2  B.  &  P. 
<N.  R.)  401. 

171  Simonds  v.  Pierce.  31  Fed.  Rep.  137;  .Tenninzs  v.  M^Ilroy,  42 
Ark.  230,  48  Am.  Rep.  Gl;  Dyer  v.  Cady.  20  Conn.  503;  Rogers  v. 


477  PEUSOXAL  PROPERTY  SUB.JECT  TO  EXECUTION.        §  117 

gagor  biiuself  may  rely  upon  and  assert  it.  It  is  deemed 
to  operate  for  his  proleeliou  by  not  permitting  a  sale  of 
the  property  while  his  interest  therein  is  uncertain, 
and  may  hence  be  exposed  to  ruinous  sacrifice,  and  if 
the  ofiieer,  nevertheless,  proceeds  to  levy  ui>on  and  sell 
the  property,  it  has  been  held  that  the  mortgagor  may 
recover  such  property  of  the  purchaser  at  the  execu- 
tion sale.  "The  authorities  cited  do  not  warrant  the 
inference  that  a  debtor  is  estopped  from  availing  him- 
self of  the  want  of  property  in  the  subject  of  sale  in 
an  action  against  himself  by  the  purchaser  at  such  sale. 
The  rule  prohibiting  a  sale  of  the  equity  of  redemption 
under  execution  is  designed  to  protect  the  property  of 
the  debtor  from  sacrifice;  to  prevent  gambling  about 
uncertainties,  and,  such  being  its  aim,  there  is  a  pro- 
priety in  sulTering  the  debtor  to  avail  himself  of  this 
defense."  *''' 

But  in  many  of  the  United  States  the  courts  have 
proceeded  upon  the  theory  that,  except  as  between  the 
mortgagor  and  the  mortgagee,  the  former,  while  by 
the  terms  of  the  mortgage  he  is  entitled  to  retain  pos- 
session for  a  definite  time,  must  be  treated  as  the  real 
owner  of  the  property  mortgaged.  They  have  there- 
fore held  that  the  mortgagor's  interest  in  the  chattels, 
while  he  has  the  right  to  retain  possession,  may  be  sold 
under  execution. ^'^     "A  mortgagor  of  chattels  has  an 

Highland.  fiO  Ta.  504.  r.S  Am.  Rop.  2P,0:  ^rcronnpll  v.  Donliani.  72 
la.  404:  roclirane  v.  Rich.  142  Mass.  15;  Young  v.  Scliofield.  132 
Mo.  fi50:  Howe  v.  Teft.  15  R.  I.  477. 

172  Yeldell  v.  Stemmons.  15  Mo.  443. 

173  Hunter  v.  Hunter.  Walk.  104;  McWhorter  v.  Hulins.  3  Dana, 
349;  Randall  v.  Cook,  17  Wend.  53;  Redraan  v.  Hendricks,  1  Sand. 
32:  Waters  v.  Stewart,  1  Caines  Cas.  47;  Hohart  v.  Frisbie.  5  Conn. 
502;  McOrecor  v.  Hall.  3  Stew.  &  P.  .307:  Purnell  v.  Hojran.  5  Stew. 
&  P.  102:  Ford  v.  Philpot.  5  Har.  t^-  .T.  312:  Fn?rnte  v.  Clarkson.  2 
B.  Mon.  41,  36  Am.  Dec.  58!);  Merritt  v.  Niles.  25  111.  283;  Collins  v. 


§  117       PERSONAL  PPcOPERTY  SUBJECT  TO  EXECUTION.  478 

interest  iu  the  mortgaged  property  until  it  has  been 
barred  or  foreclosed,  which  may  be  seized,  taken,  and 
disposed  of  by  his  creditors.  But  this  is  such  an  inter- 
est that  it  must  be  taken  and  treated  as  subservient  to 
the  paramount  interest  of  the  mortgagee.  The  latter 
has  a  vested  right  to  require  that  the  property  be  con- 
verted into  a  satisfaction  of  his  demand;  and,  subject 
to  this  right,  the  creditor  of  the  mortgagor  may  attach 
or  seize  the  property.  He  cannot,  hovs^ever,  deprive 
the  mortgagee  of  the  possession  of  his  security  if  he  has 
such  possession,  nor  can  he  assume  control  and  dispose 
of  the  property  regardless  of  the  prior  right  of  the 
mortgagee."  ^"^^  If  the  officer  levies  upon  the  entire 
property  mortgaged,  instead  of  upon  the  interest  of  the 
mortgagor  therein,  and  assumes  to  control  and  dispose 
of  the  property  absolutely,  the  writ  in  some  of  the 
states  furnishes  no  justification  for  his  action.^'^^  But 
in  other  states,  if  the  defendant  is  in  possession  of  the 
property,  and  entitled  to  remain  in  possession  for  some 
definite  period,  the  sheriff  may  lawfully  seize  and  sell 

Gibson,  5  Vt.  243;  Garro  v.  Thompson,  7  Watts.  410;  Sclirader  v. 
Wolfin,  21  Ind.  238;  Wright  v.  Henderson,  12  Tex.  43;  Van  Ness  v. 
Hyatt.  18  Pet.  294;  Bailey  v.  Burton.  8  W^end.  339.  348;  Hall  v.  Samp- 
son. 35  N.  Y.  274,  91  Am.  Dec.  56;  A«thony  v.*Shaw,  7  R.  I.  275; 
Mercer  v.  Tinsley,  14  B.  Mon.  274;  Mattison  v.  Baucus,  1  N.  Y.  295; 
Wooton  v.  Wheeler.  22  Tex.  3.38;  Saxton  v.  W^illiams.  15  Wis.  292; 
O'Neal  V.  W'ilson,  21  Ala.  288;  Moore  v.  Mnrdock.  26  Cal.  527;  Ray- 
sor  V.  Reed,  .55  Tex.  266;  Lyman  v.  Bo  we,  66  How.  Pr.  481;  Sim- 
mons V.  .Jenkins,  76  111.  479;  People  v.  Dickson,  65  111.  App.  99;  Mar- 
tin V.  Duncan,  156  111.  274;  McKnight  v.  Gordon,  13  Rich.  Eq.  222. 
94  Am.  Dec.  164;  Myers  v.  Cole,  32  Kan.  138;  Gould -v.  Armagost, 
46  Neb.  897;  Curd  v.  Wunder,  5  Oh.  St.  92;  Goode  v.  Rogers,  19  R.  I. 
1;  Second  N.  B.  v.  Gilbert,  174  111.  485,  66  Am.  St.  Rep.  306. 

1-4  Second  N.  B.  v.  Gilbert,  174  111.  485,  66  Am.  St.  Rep.  306;  Cot- 
ton V.  Marsh.  3  Wis.  241;  Cotton  v.  Watkins,  6  Wis.  629;  Ashley  v. 
Wright,  19  Ohio  St.  291. 

1715  Frisbee  v.  Langworthy.  11  Wis.  375;  McConeghy  v.  McCaw,  31 
Ala.  451;  Fox  v.  Crouan,  47  N.  .1.  L.  493,  54  Am.  Rep.  190. 


47 iJ  PERSONAL  PROPERTY  SUBJECT  TO  KXIXUTJOX.        §  117 

the  property  without  taking  any  notice  of  the  mort- 
gagee's interest.^''^  It  sseenis  to  us,  however,  that  the 
general  rule  that  an  officer  who,  having  notice  of  de- 
fendant's special  interest,  assumws  to  sell  a  greater  in- 
terest in  chattels  than  belongs  to  defendant  in  execu- 
tion, is  liable  for  conversion,*"'^  ought  t(»  o^jerate  in 
favor  of  mortgagees.*'**  It  may  be  otherwise,  however, 
when  the  officer  has  the  right  to  seize  and  sell  the  prop- 
erty because  the  statute  permits,  and  the  debt  is  not 
yet  due,  and  he  does  nothing  inconsistent  with  the 
rights  of  the  mortgagee,  or  which  impairs  his  remedy 
under  his  mortgage.*'"  But  when  the  mortgagor  has 
no  right  to  retain  possession  of  the  property  except  by 
the  permission  of  the  mortgagee,  he  cei-tainly  has  little 
claim  to  be  regarded  as  the  owner  thereof.  As  he  has  . 
no  right  to  the  possession,  it  is  difficult  to  understand 
how  his  creditors  can  obtain  such  right  by  virtue  of 
process  against  hm.  II is  interest  in  such  case  is  a 
mere  equity;  and  even  the  American  courts  do  not  re- 
gard it  as  subject  to  execution,  except  when  rendered 
so  by  the  provisions  of  some  statute.  Hence,  if  the 
mortgagee  is  entitled  to  the  possession  of  the  property, 
the  officer  has  no  right  to  seize  it,  although  it  is  found 
in  the  possession  of  the  mortgagor,  such  possession 
being  permissive  merely,  and  not  a  matter  of  right.***^ 

iT6Hall  V.  Cnrnlcy.  11  N.  Y.  .'01;  17  N.  Y.  202;  Goiilet  v.  Asseler. 
22  N.  Y.  225;  Manning  v.  Mouaahan.  28  N.  Y.  585;  Fairbaiik  v. 
Phelps.  22  Pick.  535;  Hamill  v.  Gillespie,  48  N.  Y.  556;  Ament  v. 
Greer.  37  Kan.  648. 

1T7  Dean  v.  Whittaker,  1  Carr.  &  P.  347;  Wheeler  v.  McFarland. 
10  Weml.  318. 

ITS  An  officer  who,  under  an  execution  against  a  cotenant.  assumes 
to  sell  the  entire  chattels,  is  suilty  of  a  conversion.  Freeman  on 
Cotenancy  and   Partition,  sees.  214,  310. 

"ft  Locke  V.  Schreck.  .54  Neb.  472. 

"0  Spriggs  V.  Camp,  2  Spears,  181;  Yeldell  v.  Barnes,  15  Mo.  443; 


§  117        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  48t> 

If  the  mortgage  stipulates  that  the  mortgagor  may  re- 
tain possession,  with  a  condition  that  if  any  of  the  prop- 
erty be  levied  upon,  it  shall  be  lawful  for  the  mortgagee 
to  take  immediate  possession,  an  action  may  be  main- 
tained by  the  mortgagee  against  an  officer  who  has 
seized  and  carried  away  the  property  under  process 
against  the  mortgagor/**^  When  the  mortgage  is 
made  to  secure  a  debt  already  due,**^^  or  when,  having 
been  made  to  secure  a  debt  to  become  due  in  a  specified 
time,  default  is  thereafter  made  in  the  payment,  the 
mortgagor  has  no  right  to  retain  possession,  and  no 
interest  subject  to  execution.***^  In  other  words, 
whether  the  right  to  take  mortgaged  chattels  under 
execution  against  the  mortgagor  is  expressly  conferred 
by  statute,  or,  in  the  absence  of  statutory  provisions 
upon  the  subject,  has  been  affirmed  by  the  courts  on 
the  ground  that,  by  the  terms  of  the  mortgage  or  the 
implied  rights  of  the  parties,  the  mortgagor  has  a  right 

Kinc  V.  Bailey,  S  Mo.  332;  Mattison  v.  Baucus.  1  N.  Y.  295;  Perkins 
V.  Mayfiekl.  5  Tort.  182;  Talmer  v.  Forbes,  2:^  111.  301;  Egslestou  v. 
Mundy,  4  Midi.  29."):  Favrell  v.  Ilildreth,  38  Barb.  178;  Holbrook  v. 
Baker,  5  Greenl.  309.  17  Am.  Dec.  230;  Campbell  v.  Leouard,  11 
Iowa,  489;  Paul  v.  Hayford,  22  Me.  234;  Marsh  v.  Lawrence,  4  Cow. 
4G7;  Galen  v.  Brown,  22  N.  Y.  37;  Tannahill  v.  Tuttle,  3  Micb.  104, 
61  A-m.  Deo.  480. 

181  W'olcli  V.  Whittemore,  25  Me.  8G. 

"2  Baltes  V.  Kipp.  1  Abb.  Dee.  78;  3  Keyes,  210. 

182  Thompson  v.  Thornton,  21  Ala.  808;  Baxter  v.  Gilbert,  12  Abb. 
Pr.  97;  Stewart  v.  Slater.  6  Duer,  83:  Champlin  v.  Johnson,  39  Barb. 
606;  Ford  v.  Williams.  13  N.  Y.  577.  67  Am.  Dec.  83;  Tannahill  v. 
Tuttle.  3  Mich.  104,  (i1  Am.  Dec.  480;  Porter  v.  Parmly.  43  How.  Pr. 
445;  Peckinbanjih  v.  Quillin,  12  Neb.  586;  Rowland  v.  Willett,  3 
Sand.  607;  Mercer  v.  Tinsley,  14  B.  Mon.  272;  Farmers'  Bank  v. 
Cowan.  2  Keyes,  217;  Bacon  v.  Kiiumel,  14  Mich.  201.  But  it  is 
now  understood  that  the  statute  in  Michijran  authorizes  the  levy 
upon  jroods  in  the  mortirajioi''s  possession  at  any  time  before  the 
mortfrajre  is  actually  foreclosed.  Gary  v.  Hewitt,  26  Mich.  228.  The 
same  rule  prevails  in  Rhode  Island.  Arnold  v.  Chapman,  13  R.  L 
586. 


481  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  117 

to  remain  in  possession  for  some  definite  period,  when 
he  no  longer  has  such  right,  he  has  nothing  subject  to 
levy  and  sale  under  execution.  When  the  mortgage 
debt  ha«  become  due,  or  when,  from  any  cause,  there  is 
a  breach  of  the  condition  of  the  mortgage,  the  mort- 
gagor loses,  and  the  mortgagee  acquires  a  right  to  th(^ 
possession  of  the  property,  and,  as  the  mortgagor  re- 
tains no  right  to  such  possession,  none  can  be  acquired 
by  an  officer  levying  a  writ  against  him,  and, if  the  mort- 
gagor retains  any  interest  of  value,  it  cannot  be  sub- 
jected to  execution,  unless  by  garnishment  or  some 
other  proceeding  involving  no  infringement  of  the 
rights  of  the  mortgagee.*^* 

If  an  officer  having  a  writ  against  a  mortgagor  in- 
sists upon  seizing  or  otherwise  interfering  with  the 
property  after  such  breach  of  condition,  he  is  answer- 
able to  the  mortgagee  in  any  appropriate  action  which 
the  latter  may  bring  either  to  recover  the  property  or 
for  its  conversion. ^^'^ 

In  Indiana,  it  has  been  held  that  an  officer  selling 
mortgaged  chattels, under  awrit  against  the  mortgagor, 
and  delivering  them  to  the  purchaser,  was  liable  in 
nominal  damages  only  while  they  remained  within  the 
county,  and  where  no  substantial  injury  had  been  suf- 
fered by  the  mortgagee,  because  he  could,  by  proper  ac- 
tion, recover  the  property  from  the  purchaser.**^ 

It  must  be  admitted  that  the  American  law  deter- 

184  Root  V.  Davis.  51  Ohio  St.  29;  Stuart  v.  Alexander.  14  Neb.  37. 

1S5  State  V.  Carroll.  24  Mo.  App.  358;  Pollock  v.  Douglas,  56  Mo. 
App.  487;  Trice  v.  Walker,  71  Miss.  968;  Metzler  v.  James,  12  Colo. 
.322;  Lea  abetter  v.  Leadbetter,  125  N.  Y.  290.  21  Am.  St.  Rep.  738; 
Mauchester  v.  Tibbetts,  121  N.  Y.  219.  28  Am.  St.  Rep.  816;  Norris 
V.  Sowles,  57  Vt.  360;  Ex  parte  Lorenz,  32  S.  C.  365,  17  Am.  St.  Rep. 
S62. 

180  state  V.  Bergner,  20  Ind.  App.  390,  07  Am.  St.  Rep.  261. 
Vol.  I.— 31 


§117        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  4S2 

mining  wlietlier  an  execution  can  be  levied  upon  mort- 
gaged cliattels  is  unsettled,  and  that  different  x^ersons 
are  likely  to  disagree  as  to  the  result  of  the  reported 
cases.  Mr.  Hilliard  says:  "The  weight  of  authority 
would  seem  to  be  against  the  right  of  taking  mortgaged 
property  in  execution."  ^^"^  Mr.  Sumner,  in  his  note  to 
Lyster  v.  Dolland,  1  Yes.  Jr.  431,  shows  that,  "except 
as  against  the  mortgagee,  the  mortgagor  is  regarded 
as  the  real  owner  of  the  property  mortgaged,  and,  in 
the  United  States,  the  rule  has  very  extensively  pre- 
vailed that  an  equity  of  redemptionwas  vendible*  as  real 
property  on  an  execution  at  law";  and  by  his  citations 
shows  a  decided  majority  of  the  cases  to  be  in  favor 
of  the  practice  of  seizing  equities  of  redemption  under 
fieri  facias.  But  while  there  are  a  few  cases  in  which 
an  equity  of  redemption  in  chattels  is  stated,  without 
qualification,  to  be  subject  to  execution,^*^*^  and  while 
eases  somewhat  more  numerous  than  those  just  alluded 
to  maintain  tlie  broad  proposition  that  an  equity  of  re- 
demption in  chattels  is  never  subject  to  execution, '''•* 
we  think  the  result  of  a  considerable  majority  of  th<^ 
American  decisions  is  this:  that  a  mere  equity  of  re- 
demption is  not  of  itself  subject  to  execution;  but  when 
such  equity  is  joined  with  the  right  to  remain  for  a 
definite  time  in  possession  of  the  property  mortgag(Ml, 
the  mortgagor  has  an  interest  which  may  be  seized  and 
sold  under  an  execution  at  law. 

187  2  Hilliard  on  Mortgast'S,  2(1  ed.,  428. 

188  Dougliteii  V.  Gray,  2  Stock.  323. 

189  Badlam  v.  Tucker,  1  Tick.  :^>99,  11  Am.  Dec.  202;  Rose  v.  P.ovan, 
10  Md.  4t)G,  09  Am.  Dec.  170;  Haven  v.  Low,  2  N.  H.  13,  9  Am.  Dec. 
2.5;  Myers  v.  Amey,  21  Md.  302;  Lyon  v.  Coburn,  1  Cush.  278;  White- 
sides  V.  Williams,  2  Dev.  &  B.  Eq.  153;  Laml)  v.  .Tolmson,  10  Cush. 
120;  Hawkins  v.  May,  12  Ala.  073;  Thornhill  v.  Gilnior.  4  Smcdes 
A:  M.  103;  Ilarbinson  v.  Harrell,  19  Ala.  753;  Commercial  Bank  v. 
Waters,  10  Smedes  &  M.  559. 


4S3  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  117 

Willi  respect  to  the  authority  of  an  ofhcer  to  invade 
the  rightful  possession  of  the  mortgagee,  for  the  pur- 
pose of  levying  on  the  niortgngor's  equity  of  reilcnip- 
tion,  Avhere  he  yet  retains  such  ecjuity,  the  courts  are 
not  entirely  in  harmony.  On  the  one  hand,  it  is  in- 
sisted that,  in  those  states  where  such  equity  is  subject 
to  execution,  the  mortgage  is  accepted  with  a  tacit 
agreement  that  it  may  be  so  subjected,  and  that  such 
steps  maj'  be  taken  as  are  necessary  thereto,  and  that 
these  necessarily  include  the  right  to  seize  the  property 
even  while  in  the  i>ossession  of  the  mortgagee,  and  to 
retain  such  possession  so  as  to  be  enabled  to  have  the 
property  present  at  the  sale;  ^^"  and  the  case  is  likened 
to  that  of  an  execution  against  one  of  several  partners, 
in  which  it  is  generally  conceded  that  the  officer  may 
seize  the  property  and  sell  the  partner's  interest  there- 
in, though  the  title  conveyed  is  nothing  beyond  what 
may  remain  after  the  settlement  of  the  affairs  of  the 
partnership.  Where  the  law  requires  property  to  be 
present  at  the  time  of  the  sale,  it  seems  to  be  necessary 
to  concede  either  that  the  levying  officer  may  take  it 
from  the  possession  of  the  mortgagee. or  else  that,  while 
in  such  possession,  it  is  not  subject  to  levy  and  sale 
unless  by  his  permission.  On  the  other  hand,  it  is 
urged  that  the  mortgagee,  being  in  possession  and  enti- 
tled to  the  possession  as  against  the  mortgagor,  no 
creditor  of  the  latter  can  acquire  any  right  which  his 
debtor  has  not;  that  no  right  of  possession  can  be  ac- 
quired by  levying  a  writ  against  one  who  is  without 
such  right;  and,  tinally,  that  it  would  very  seriously 
impair  the  rights  of  the  mortgagee  if  the  property 
could  be  taken  from  his  hands  for  an  indefinite  period, 

190  iinoklomnn  v.  Coodnian.   T."   Ind.  204;   Loutbaiu  v.  Miller,  85 
Ind.  IGl;  Sparks  v.  Compton,  70  lud.  393. 


§  117       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  484 

in  order  to  subject  to  execution  an  equity  of  redemption 
which  might  be  of  no  value  whatsoever.  In  some  of 
the  states  an  escape  from  the  dilemma  is  effected  hy 
holding  that  a  levy  and  sale  may  be  made,  in  such  cir- 
cumstances, without  taking  possession  of  the  mort- 
gaged property.*^®^  The  better  rule,  however,  as  we 
have  already  indicated,  is,  that  the  mortgagor  has  no 
interest  subject  to  levy,  unless  he  has,  in  addition  to  his 
mere  equity  of  redemption,  the  right  to  remain  in  pos- 
session of  the  property  for  some  ascertainable,  definite 
length  of  time. 

As  will  be  seen  from  examining  the  summary  of  stat- 
utes showing  property  subject  to  execution,  the  right 
to  levy  upon  and  sell  mortgaged  chattels  exists,  at  the 
present  time,  in  the  greater  number  of  these  United 
States.  Where  this  right  is  given  in  general  terms,  it 
is  usually  understood  to  be  subject  to  the  limitation 
that  an  officer  cannot  exercise  it  after  a  breach  of  con- 
dition has  deprived  the  mortgagor  of  his  right  of  pos- 
session.'^^ 

Whenever  an  officer  is  given  the  right  to  take  posses- 
sion of  mortgaged  personalty,  whether  before  or  after 
condition  broken,  the  statutes  so  limit  his  acts  or  so 
require  them  to  be  attended  by  such  conditions  prece- 
dent that  the  rights  of  the  mortgagee  cannot  be  imper- 
iled. This  is  accomplished  by  various  methods.  In 
Arizona  and  Nevada  an  execution  creditor  must  either 

190a  Fox  V.  Cronan,  47  N.  J.  L.  493.  54  Am.  Rep.  190;  Srodes  v. 
Caven,  3  Watts,  258;  Welch  v.  Bell.  32  Ta.  St.  12;  Chicago  Lumber 
Co.  V.  Fisher,  18  Neb.  334. 

191  Heflin  v.  Slay,  78  Ala.  180;  Durfee  v.  (Jriiinell,  r>9  111.  371; 
Lewis  V.  D'Arcy,  71  111.  (M8;  Simmons  v.  .Teukiiis,  7(i  111.  479;  Broad- 
head  V.  McKay,  40  Ind.  .595;  State  v.  Millisan.  10(>  Ind.  109;  Coleman 
V.  Reel.  70  Iowa.  27;  Anient  v.  Greer,  P,~  Kan.  048;  Butler  v.  Lee, 
54  Miss.  470;  Blawelt  v.  Fechtman.  48  N.  ,T.  L.  4.W;  Millor  v.  Pan- 
coast,  29  N.  J.  L.  250;  Arnold  v.  Chapman,  13  K.  1.  580. 


485  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  117 

sell  the  property  subject  to  the  ri<;lits  of  the  mortgagee, 
or  must  tender  him  the  amount  due  before  taking  ac- 
tual possession. ^"^  In  California,  Montana^  North  Da- 
kota, Utah,  and  in  Oklahoma  Territory,  an  officer  has 
no  right  to  take  possession  of  mortgaged  chattels  with- 
out tendering  to  the  mortgagee  the  full  amount  of  his 
debt,  and,  if  he  does  so,  is  liable  to  an  action  for  the 
full  amount  of  such  chattels  not  exceeding  the  amount 
of  the  indebtedness  secured  thereby.*^*  In  Colorado, 
a  creditor  may  proceed  by  garnishment  against  the 
mortgagee,  and  procure  an  order  requiring  him  to  ac- 
cept payment  of  the  money  found  due,  and  thereupon 
to  deliver  the  property  to  the  officer,  to  be  subjected  to 
execution.  By  the  statutes  of  Connecticut  the  interest 
of  a  mortgagor  in  the  chattels  may  be  appraised,  and 
the  whole  or  any  part  thereof  may  be  set  off  to  the 
judgment  creditor.  He,  however,  holds  his  title  sub- 
ject to  the  mortgage.  In  Georgia,  upon  a  levy  upon 
chattels  subject  to  a  mortgage,  the  mortgagee  may  file 
\¥ith  the  levying  officer  an  affidavit  showing  the 
amount  due,  and  stating  that  he  fears  he  will  suffer 
loss  unless  a  bond  is  given.  The  purchaser  of  the 
property  at  the  execution  sale  must  thereupon  give  a 
bond  in  double  the  value  of  the  property  that  he  will 
not  remove  it  from  the  state,  and  will  have  it  forthcom- 
ing to  answer  the  lien.  The  pro  visions. of  the  st<atutes 
of  Florida  are  very  similar  to  those  of  Georgia.  The 
chief  difference  is  in  permitting  the  judgment  creditor 
to  summon  the  mortgagor  and  mortgagee  before  the 
court,  to  answer  and  ascertain  what  amount  remains 
due  on  the  mortgage.     If  a  sale  is  made,  the  purchaser 

192  Mooney  v.  Broadway.  11  Par.  114. 

iM  Irwin  V.  MoDowoll.  91  Cal.  119;  Wood  t.  Franks,  5G  Cal.  217; 
Rider  v.  Edgar.  54  Cal.  127. 


§  117       PERSONAL  PROPERTY  SUBJECT  TO  EXKe  UTION.  4S& 

must  give  a  bond  conditioned  as  in  Georgia.  In  Idaho, 
a  judgment  creditor  may  tender  to  the  mortgagee  the 
amount  due  on  his  mortgage,  and  thereupon  take  pos- 
session of  such  pro])erty.  or  sucli  creditor  may,  without 
making  such  tender,  serve  a  copy  of  the  writ  on  the 
mortgagor  and  the  mortgagee,  with  a  notice  that  the 
property  is  levied  upon,  and  may  sell  the  (Miuity  of  the 
mortgagor,  and  the  purchaser  is  entitled  to  possession^ 
subject  to  the  rights  of  the  moi-tgagee.  In  Indiana,  the 
officer  may  levy  upon  and  take  into  his  i)()ssession  the 
mortgaged  chattels,  and  sell  them  under  execution, 
and  the  purchaser  is  entitled  to  possession  on  comply- 
ing with  the  terms  of  the  mortgage.  If  the  officer  sells 
and  delivers  the  mortgaged  chattels  to  the  purchaser 
without  first  requiring  the  latter  to  comply  with  the 
conditions  of  the  mortgage,  such  officer  is  answerable 
to  the  mortgagee.^"*  In  Kentucky,  the  interest  of  a 
mortgagor  of  chattels  may  be  levied  on  and  sold  under 
execution,  but  the  purchaser  obtains  no  right  to  pos- 
session unless  he  gives  security  that  the  property  shall 
not  be  removed  from  the  county,  and  shall  be  preserved 
and  forthcoming  to  answer  the  claim  of  the  mortgagee. 
In  :Maine,  Massachusetts,  Xew  Hampshire,  and  Ver- 
mont, an  officer  may,  under  execution  against  a  mort- 
gagor, levy  upon  chattels  and  take  them  into  his  pos- 
session. Proceedings  may  subsequently  be  taken  to 
ascertain  the  amount  of  the  mortgage  debt,  and,  within 
a  time  specified  in  the  statute  after  it  has  been  ascer- 
tained, the  officer  must  satisfy  it  or  surrender  posses- 
sion of  the  property.  In  :Michigan  and  Minnesota, 
mortgaged  chattels  are  subject  to  execution  against  the 
mortgagor,  and  the  purchaser  is  entitled  lo  possession 

194  State  V.  Milligan,  lOG  Ind.  10.',;  Kaekley  v.  State,  01  Ind.  437. 


487  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  117 

on  complying  with  tbe  terms  of  the  mortgage.  The 
right  to  h'vy  upon  the  property  continues  until  the 
mortgagor  loses  his  right  therein  by  a  foreclosure  of 
the  mortgage,  and,  at  any  time  before  such  foreclosure, 
the  officer  is  entitled  to  possession,  so  far  as  may  be 
necessary  to  enable  him  to  make  a  sale.''*''  In  Wash- 
ington, mortgaged  chattels  may  be  levied  upon,  sub- 
ject to  the  lien  of  the  mortgage.  The  levying  officer 
must  notify  the  mortgagee  of  the  intended  sale,  which 
sliall  not  be  within  less  than  thirty  days  from  the  seiz- 
ure. .  The  statutes  of  AVisconsin  authorize  a  sale  of  the 
mortgagor's  interest,  but  do  not  permit  the  officer  to 
deprive  the  mortgagee  of  possession,  if  he  is  in  posses- 
sion. Otherwise  the  officer  must  take  possession,  but 
must  sell  the  property  in  bulk,  and  must  not  deliver 
possession  to  the  purchaser  until  the  latter  pays  the 
mortgage  debt. 

Although  mortgaged  chattels  were  subject  to  execu- 
tion at  the  time  of  a  levy  thereon,  because  the  mort- 
gage debt  was  not  then  due,  and  the  mortgagor,  there- 
foa*e,  had  a  right  to  retain  possession  for  some  definite 
period,  yet,  if  subsequenth',  and  while  the  chattels  are 
in  possession  of  the  ofhcer,  the  debt  becomes  due,  or, 
for  any  other  reason,  the  mortgagor's  right  of  posses- 
sion terminates  and  that  of  the  mortgagee  begins,  the 
officer's  right  to  hold  the  property  and  to  subject  it  to 
execution  ceases,  and  he  must, on  proper  demand  there- 
for, surrender  it  to  the  mortgagee.^'***  In  some  of  the 
states  the  fact  that  tlie  mortgage  debt  is  due  does  not 
prevent  the  interest  of  the  mortgagor  from  being  levied 

195  flaynes  v.  Loppip:.  40  Mich.  G02;  :Muellor  v.  Provo.  80  Mich. 
475.  20  Am.  St.  Rop.  525;  Schloss  v.  Joslyn,  Gl  Mic-b.  267;  Wilson 
V.  Montague.  57  Mich.  038. 

i96Aiiiout  V.  Greer,  37  Kau.  048;  Rankine  v.  Greer,  38  Kan.  343. 
5  Am.  St.  Rep.  751. 


§  117       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  488 

upon  under  attachment  or  execution  until  actual  fore- 
closure, but  the  right  of  the  mortgagee  to  foreclose 
must  be  recognized  and  not  substantially  impaired, 
and  possession  must  be  surrendered  to  him  so  far  as 
necessary  to  such  foreclosure.^^^  * 

It  necessarily  follows  from  the  rule  that  a  levying 
officer  has  no  right  to  impair  the  rights  of  the  mort- 
gagee— that  the  officer's  acts  should  be  subordinate  to, 
and  consistent  with,  those  rights.     If  the  officer  or  the 
judgment  creditor  discharges  the  mortgage  debt,  a  sale  " 
of  the  mortgaged  property  may  be  made  in  parcels  as 
in  other  cases,  but   if   the  debt   remains   unpaid,  the 
mortgagee  has  a  lien  on  the  whole  property,  with  a  cor- 
responding right  to  pursue  the  whole  by  a  suit  in  fore- 
closure, or  by  such  other  remedies  as  may  be  accorded  to 
him  by  the  statutes  of  the  state.    The  officer  must,  nev- 
ertheless, levy  upon  and  sell  the  property  as  a  whole, 
and  has  no  right  to  sell  separate  parcels  and  to  deliver 
possession  thereof  to  the  purchaser.^'*''     It   has   been 
held,  however,  that  if  a  levy  be  made  upon  some  only 
of  the  mortgaged  chattels,  it  is  valid  as  against  the 
mortgagor,  and  can  be  objected  to  only  when  the  mort- 
gagee's interests  are  jeopardized.*®*     It  is  obvious  that 
a  levy  and    sale  of   this  character,    if  sustained,  may 
operate  very  disastrously   upon   the   interests   of  the 
mortgagor,  for,  as  each  separate  parcel  offered  for  sale 
is  probably  subject  to  a  lien  for  an  amount  greater  than 
its  value,  few  persons  will  subject  themselves  to  the 
risk  of  loss  involved  in  its  purchase,  and  hence,  if  each 
parcel  be  separately  sold,  the  aggregate  sum  realized 

i8«a  Wilson  V.  Montague,  .57  Mich.  043. 

19T  Wortliington  v.  Ilanna,  2.3  Mich.  .530:  Wilson  v.  Montajsrue,  57 
Mich.  038;  Central  T.  Co.  v.  Moran,  56  Minn.  188;  Manning  v.  Mana- 
frhan,  1  Bosw.  4.59. 

"8  Galde  v.  Forsythe,  72  Minn.  248. 


439  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  II7 

may  be  far  in  excess  of  what  would  have  beeu  produced 
by  a  H-dW  of  the  whole,  subject  to  tiie  iiiort<;a<ie  lien, 
<ind  the  better  opinion,  we  think,  is,  that  where  mort- 
gaged chattels  arc  not  subject  to  levy,  or,  if  subject  to 
levy,  not  subject  in  the  mode  actually  i»iirsucd,  the 
mortgagor  may  himself  object  that  the  proceeding 
taken  against  him  is  not  sanctioned  by  law,  and  should, 
1  herefore,  be  dr'emed  inoperative,'""  Hence,  if  the  exe- 
<'Ution  to  be  levied  is  in  favor  of  the  morlgiigee,  he  must 
proceed  in  the  same  manner  as  any  other  creditor,  and, 
if  he  does  not  hiake  a  levy  in  the  manner  riMpiired  in  the 
vase  of  mortgaged  chattels,  such  levy  and  a  sale  made 
thereunder  are  inoperative  as  against  the  moilgag- 
or.'""* 

A  mortgage  of  chattels,  if  made  for  the  purpose  of 
hindering,  delaying,  or  defrauding  creditors,  is  not  en- 
forceable as  against  them,  and  if,  for  this  or  any  other 
reason,  it  is  void,  they  may  levy  upon  the  property  sub- 
ject thereto  without  taking  any  notice  of  the  mortgage, 
iind  without  incurring  any  liability  to  the  fraudulent 
mortgagee.^^"  A  purchaser  at  an  execution  sale  ac- 
<iuires  a  title  against  which  such  a  mortgage  cannot  be 
asserted.^"* 

By  whatever  mode  or  to  whatever  extent  an  oflQcer, 
when  levying  an  execution,  or  in  any  supplementary 
X)roceedings  thereunder,  denies  or  violates  the  rights 
of  the  mortgagee,  the  latter  may  seek  and  obtain  re- 
dress by  any  appropriate  action,  whether  the  wrong 
consists  in  levying  upon  property  when  not  subject  to 
levy,  or  in  retaining  it  after  the  mortgagee  becomes  en- 

199  Motzler  V.  Jainos,  12  Colo.  322. 
199a  Cutler  V.  Gould  Co..  43  Hun.  516. 

200  Kitchen  v.  Lowery.  127  N.  Y.  53;  Guilford  v.  Mills.  18  N.  Y. 
Supp.  275. 

201  i^orter  v.  Parmley,  52  N.  Y.  185. 


§118        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  490 

titled  to  its  possession  because  of  the  default  of  the 
mortgagor/'"'  or  in  utterly  denying  the  right  of  the 
moi-tgagee,  for,  though,  by  the  statutes  of  the  state,  an 
officer  has  the  right  to  levy  upon  property  subject  to 
the  mortgagee's  lien,  and  to  take  possession  of  it  for  the 
purpose  of  making  a  sale  under  execution  subordinate 
to  such  lien,  yet,  if  it  is  clear  that  he  made  a  levy  in  de- 
fiance of  the  mortgagee's  claim,  and  intended  to  deny 
and  resist  it  altogether  on  the  ground  that  the  mort- 
gage was  fraudulent,  or,  for  some  other  reasion,  void, 
the  mortgagee  may  at  once  maintain  an  action  of  re- 
plevin or  trover  witliout  making  any  demand  for  the 
return  or  surrender  to  him  of  the  property.^^* 

§  11 8.  Mortgagee's  Interests. — in  many  of  the  state*? 
a  mortgage  is  no  more  than  a  mere  lien,  having,  before 
foreclosure,  no  effect  on  the  title  except  to  make  it 
stand  as  security  for  the  payment  of  the  mortgagor's 
debt.  In  such  a  case,  it  is  clear,  upon  principle,  and  in 
the  absence  of  all  authority,  that  the  mortgagee  has 
no  estate  in  the  property  mortgaged  subject  to  execu- 
tion, though  a  levy  on  the  note  or  other  indebtedness 
secured  by  the  mortgage,  in  states  where  choses  in  ac- 
tion are  subject  to  execution,  must  operate  to  transfer 
the  indebtedness,  and,  as  an  incident  thereto,  the  mort- 
gage lien.  But  under  the  coninioii-law  system,  while 
the  mortgage,  technically  speaking,  vested  the  legal 
title  in  the  mortgagee,  yet,  for  all  practical  puiiioses,  he 
was  regarded  merely  as  a  lienholtler.  His  interest  wa® 
not  liable  to  be  taken  in  execution  during  the  continu- 
ance of  the  mortgagor's  equity  of  redemption;     for  all 

202  Worth  in  gton  v.  Hanna.  2?,  IMicli.  r.nO:  Cotton  v.  Watkins,  0 
Wis.  029;  Frisbie  v.  Langworthy,  11  Wis.  ?>7^. 

20S  Morrill  v.  Denton,  7.3  Mirli.  028;  Malaolii.'^ki  v.  ytellwagen,  Si 
Mith.  41;  Williams  v.  Kaper,  67  Mich.  427. 


491  rERSOXAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  118 

the  purposes  of  executions  it  was  treated  merely  as  a 
chose  in  action.^"-*  But  when  the  property  becomes 
that  of  the  mortgagee  by  reason  of  its  forfeiture  under 
the  mortgage,  it  is  liable  to  execution  under  a  writ 
against  him.-"'*  Where,  however,  notwithstanding  the 
default  of  the  mortgagor,  and  the  taking  possession  of 
the  property  by  the  mortgagee,  the  former  retains  a 
substantial  interest  therein,  and  the  rights  of  the  lat- 
ter are  in  substance  those  of  a  lienholder  merely,  his 
interest  is  not  subject  to  execution.^^ 

20*  Chapman  v.  Hunt.  2  Beasl.  370;  Dougbten  v.  Gray,  2  Stock.  Ch. 
323;  Jaclcsou  v.  Willaid,  4  Johns.  42;  Brown  v.  Bates,  55  Me.  520, 
92  Am.  Dee.  613;  Eaton  v.  Whiting,  3  Pick.  484;  Thornton  v.  Wood. 
42  Me.  2S2;  Huntington  v.  Smith,  4  Conn.  235;  Marsh  v.  Austin,  1 
Allen.  2.35;  Glass  v.  Ellison.  9  N.  H.  G9;  Trapnall  v.  State  Rank,  18 
Ark.  53;  Prout  v.  Root,  110  Mass.  410;  Knowles  v.  Herbert,  11  Or. 
54.  240. 

205  Ferguson  v.  Lee,  9  Wend.  258;  Thillips  v.  Hawkins,  1  Fla.  202. 

2oii  ^'oorhies  v.  Hennessy,  7  Wash.  243;  Prout  v.  Root,  116  Mass. 
410.  In  this  case  the  court  said:  "A  mortgage  of  personal  property 
transfers  the  general  property,  and.  in  the  al)sence  of  any  agreement 
to  the  contrary,  the  immediate  right  of  possession.  The  title  Is 
subject  to  a  defeasance;  but  unless  it  has  been  divested  by  a  per- 
formance of  the  condition,  or  by  the  exercise  of  the  mortgagor's 
right  to  redeem,  the  mortgagee  can  alone  maintain  an  action  against 
u  stranger  for  its  conversion.  It  differs  in  this  respect  from  a 
pledge,  where  only  a  special  property  passes  and  the  general  own- 
ership remains  in  the  pledgor.  At  law,  and  without  statute  inter- 
vention, the  interest  of  the  mortgagor  is  not  liable  to  be  t^iken  on 
execution,  because  it  is  a  mere  equitable  interest,  and  where  there 
is  no  legal  right  there  can  be  no  legal  remedy.  Badlam  v.  Tucker. 
1  Pick.  389-:U)0.  The  precise  question  here  presented  is,  whether 
the  interest  of  a  mortgagee  of  personal  property  in  his  possession, 
after  breach  of  condition,  and  before  foreclosure,  is  liable  to  be  so 
taken.  We  are  referred  to  no  case  in  Avhich  the  point  has  been  dis- 
tinctly passed  upon  by  this  court.  In  the  decision  of  it,  regard 
must  be  had  to  existing  h\i:islation.  and  to  the  course  of  adjudica- 
tion with  reference  to  similar  rights  of  property.  There  is  no  s>ib- 
stantial  difference  at  common  law.  in  respect  to  the  nature  of  the 
title  between  a  mortgage  of  real  and  a  mortgage  of  personal  prop- 
erty. In  both,  the  title  vests  in  the  mortgagee,  subject  to  be  de- 
feated by  the  performance  of  the  condition.    In  both,  upon  a  breach 


^118   PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     492 

The  writ  under  which  it  is  sought  to  justify  a  levy 
upon  property  may  be  founded  upon  a  judgment 
against  both  the  mortgagor  and  the  mortgagee  for  their 

of  condition,  tlie  interest  becomes  absolute  at  law;  and  yet  It  was 
held  in  the  case  of  Blanchard  v.  Colburn,  IG  Mass.  345,  that  land 
mortsaued  could  not  be  levied  on  for  the  debt  of  the  mortgagee, 
unless  he  had  first  entered  upon  the  same;  for  it  was  said,  although 
to  some  extent  the  mortgagee  is  seised  of  the  estate  in  fee  simple, 
defeasible  only  by  the  performance  of  the  condition  or  by  redemp- 
tion, j-et,  within  the  meaning  of  the  statutes  which  provide  for  the 
levy  of  executions,  the  land  is  treated  as  belonging  to  the  mort- 
gagor, Hable  to  be  taken  in  execution  as  his  real  estate  subject  to 
the  mortgage.  It  was  called  a  pledge  for  the  security  of  a  debt, 
which,  if  paid  to  the  assignee  of  the  debt,  would  discharge  the  mort- 
gage and  defeat  any  title  acquired  by  the  levy  of  a  creditor  of  the 
mortgagee.  These  and  other  objections  were  declared  Insuperable. 
And  again,  in  Eaton  v.  Whiting,  3  Pick,  484,  and  Marsh  v.  Austin, 
1  Allen,  235,  the  mortgagee's  interest  was  declared  to  be  in  fact 
but  a  chose  in  action,  at  least  until  entry  to  foreclose,  and  not  liable 
to  be  levied  on  for  his  debts.  All  right  of  redeeming  mortgaged 
lands  had  before  these  decisions  long  been  subject  to  be  taken* 
on  execution  for  the  mortgagor's  debt,  and  the  mode  of  doing  so 
pointed  out  by  the  statutes.  St.  1783,  c.  57,  §  2.  The  rule  thus 
maintained  as  to  mortgages  of  real  estate  applies  w'ith  equal,  if  not 
greater,  force  to  mortgages  of  personal  property.  The  general  prop- 
erty technically  passes,  but  it  passes  only  as  needed  for  the  security 
intended.  It  is  in  the  nature  of  a  pledge.  If  it  be  for  the  payment 
of  money,  then  it  is  treated  but  as  an  incident  of  the  debt.  An 
assignment  of  the  mortgage  carries  the  title  to  the  property,  and  an 
assignment  of  the  debt,  without  the  mortgage,  by  operation  of  law, 
♦•arries  with  it,  in  the  absence  of  any  controlling  agreement  or 
waiver  of  the  right,  an  equitable  lion  on  the  property  which  at- 
taches to  it  in  the  possession  of  the  mortgagee,  and  all  claiming 
title  under  him,  with  notice.  Eastman  v.  Foster,  8  Met.  19;  New 
Bedford  Institution  for  Savings  v.  Fairhaven  Bank,  9  Allen,  175. 
I'pon  payment  or  tender  to  the  mortgagee  of  the  debt  secured,  the 
title,  without  further  formality,  is  revested  in  the  mortgagor,  and 
he  may  maintain  replevin  for  it,  or  recover  damages  for  its  deten- 
tion. Gen.  Sts.,  c.  151,  §  5.  But  what  is  more  to  the  point,  under 
our  statutes,  the  mortgagor's  interest  in  the  property,  so  long  as 
his  right  to  redeem  remains,  is  liable,  as  in  the  case  of  real  estate, 
to  be  attached  and  taken  on  execution,  as  well  after  as  before  con- 
dition broken,  and  whether  the  property  be  in  the  possession  of 
the  mortgagee  or  not     Under  such  an  attachment,   the  property 


493     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.   §  119 

joint  debt.  Their  interest  in  the  mortgaged  property 
is  not  joint  nor  otherwise  analogous  to  that  of  paitners. 
The  writ  cannot  be  levied  upon  the  interest  of  either, 
unless  such  levy  be  justified,  though  the  writ  be  against 
him  only.  If  a  levy  is  made  in  the  same  manner  as 
though  the  parties  were  joint  owners,  it  is  void  where, 
by  statute,  a  levy  upon  the  interest  of  a  mortgagor  can 
be  made  only  in  the  manner  therein  described,  and  the 
interest  of  the  mortgagee  is  not  subject  to  levy^at 
all.^^ 

§  119.  Leasehold  Interests  in  Real  or  Personal  Prop- 
erty.— A  term  of  years  in  real  estate  was  always,  by 
the  common  law,  regarded  as  a  chattel.  It  was  trans- 
ferred as  personal,  and  not  as  real,  estate.  In  this  re- 
spect there  was  no  difference  between  voluntary  and 
involuntary  transfers.  Hence,  a  leasehold  interest  in 
lands,  for  whatever  term  of  years  it  may  continue, 
must,  unless  some  statute  directs  otherwise,  be  levied 
upon  and  sold  as  personal  property.^**®     One  who  has 

passes  into  the  custody  of  the  sheriff,  and  there  is  only  left  to  tho 
mortgagee  the  right  to  redeem,  after  a  demand,  within  a  limited 
time,  of  the  amount  due  on  his  mortgage.  If  this  be  paid,  the  pos- 
session of  the  attaching  officer  cannot  be  interfered  with,  and  the 
mortgagee's  title  is  ended.  Gen.  Sts.,  c.  123.  §§  62-71.  The  rights 
thus  given  by  statute  are  inconsistent  with  the  existence  of  a  simi- 
lar right  at  the  same  time  to  attach  the  same  property  in  favor 
of  the  creditors  of  the  mortgagee.  It  is  impossible  that  two  offi- 
cers should  have  (>qual  rights  of  possession  by  virtue  ef  attach- 
ments against  difftMvnt  parties  in  favor  of  different  creditors." 

207  Murphy  v.  Calloupe,  143  Mass.  123. 

208McCreery  v.  Berney,  N.  B.,  116  Ala.  224:  Williams  v. 
Downing.  IS  Pa.  St.  60;  Barr  v.  Doe,  6  Blaclvf.  334.  3S  Am.  Dec. 
14.5;  Buhl  v.  Kenyon,  11  Mich.  249;  Sparrow  v.  Earl  of  Bristol.  1 
Marsh.  10;  Dalzell  v.  Lynch.  4  Watts  &  S.  2.".;  Bigelow  v.  Finch.  17 
Barb.  .394;  Doe  v.  Smith,  1  Man.  &  B.  137;  Chapman  v.  Gray.  15 
Mass.  439;  Shelton  v.  Codman.  3  Cush.  318;  Thomas  v.  Blackmore. 
5  Yerg.  113;  Glenn  v.  Peters,  Busb.  457,  59  Am.  Dec.  503.    A  lease 


S  liy       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  494 

hired  personal  property  for  a  term  has  an  interest 
therein,  subject  to  seizure  and  sale  under  execution. 
The  purchaser  at  such  sale  acquires  the  right  to  retain 
and  use  the  property  to  the  end  of  the  term.^**^  But 
the  terms  of  the  hiring  may  be  such  as  to  amount  to  a 
mere  license  to  use,  and  may,  therefore,  preclude  any 
transfer  of  interest,  whether  voluntary  or  compulsory. 
Thus,  where  a  wagon  was  hired  with  the  provision  that 
it  should  be  used  only  "for  the  baker  business,"  and 
should  not  be  sold  or  loaned,  it  was  held  that  the  legal 
effect  of  this  hiring  was  to  confer  on  the  beneficiary  a 
mere  personal  license,  not  subject  to  execution.-***  In 
^[innesota,  certain  sheep  were  lent  to  W.  to  keep  for 
three  years.  W.  was  entitled  to  the  increase,  and  was 
to  deliver  annually  to  the  owner  of  the  sheep  a  certain 
amount  of  wool.  At  the  end  of  the  term,  W.  was  to 
return  the  same  number  of  sheep  as  were  lent  to  him. 
Within  less  than  a  year  after  the  commencement  of  his 
term,  the  sheep  were  seized  under  process  against  W., 
whereupon  it  was  held  that  he  had  no  interest  in  the 
sheep  subject  to  execution.^**     The  grounds  of  this  de- 

for  ninety-nine  years  is  subject  to  execution  as  a  chattel  interest 
(Bisbee  v.  Hall,  3  Ohio.  449),  though  it  contains  a  stipulation  that 
it  shall  be  renewable  forever  (Reynolds  v.  Commissioners,  5  Ohio, 
204).  But  under  the  laws  of  Ohio,  it  is  now  settled  that  permanent 
leascliolds  are  to  be  considered  as  real  estate.  McLean  v.  Rockey,  3 
McLean,  2.35;  Northern  Bank  of  Kentucky  v.  Roosa,  13  Ohio,  334; 
Loring  v.  IMelendy,  11  Ohio,  Sn.j.  In  Connecticut,  an  estate  for  999 
years,  though  not  a  freehold,  must  be  sold  as  real  estate.  Munn  v. 
Carrington,  2  Root,  15. 

209  Van  Antwerp  v.  Newman,  2  Cow.  543,  15  Am.  Dec.  340;  Gor- 
don V.  Harper,  7  Term  Rep.  11;  Ward  v.  Macauley,  4  Term  Rep. 
4S9;  Manning's  Case,  8  Coke,  329;  Dean  v.  Whittaker,  1  Car.  &  P. 
347;  Houston  v.  Simpson,  1  .Tones,  513;  Duffield  v.  Spottiswoode,  3 
Car.  &:  r.  4.35;  Allen  v.  Trqhart.  19  Tex.  487. 

210  Reinmillor  v.  Skidmore,  7  Lans.  101. 

211  Williams  v.  McGrade,  13  Minn.  174;  Kile  v.  Giebner,  114  Pa. 
St.  38L 


4y5  PEK.'iONiiL  rUOPERTY  8UBJECT  TO  EXECUTION.        §  ll'J 

cision  arc  very  imperfectly  stated  in  the  opinicm  of  the 
court.  Talcing  the  opinion,  together  with  the  syllabus 
of  the  reporter,  we  are  inclined  to  believe  that  the  court 
regarded  the  transaction  as  a  personal  bailment,  in- 
duced by  special  confidence  reposed  in  W.,  and  confer- 
ring upon  him' certain  rights  and  interests,  which,  for 
tlieir  continuance,  were  to  depend  upon  the  continued 
exercise  of  his  skill  and  labor  in  managing  the  prop- 
erty. 

It  is  undoubtedly  true,  as  a  legal  proposition,  that 
a  defendant  having  no  estate  in  property  which  he  can 
transfer  has  none  which  is  subject  to  execution,  for  the 
judgment,  the  levy,  and  the  sale  under  execution  ordi- 
narily accomplish  no  other  purpose  than  might  have 
been  realized  by  a  transfer  made  by  the  defendant  at 
the  date  of  the  inception  of  the  judgment  or  execution 
lien.  It  is  very  usual  to  insert  in  leases  provisions  for- 
bidding an  assignment  or  underletting  without  the 
consent  of  the  landlord,  and,  in  effect,  forfeiting  them 
for  any  assignment  or  underletting  in  breach  of  these 
l>rovisions.  Hence,  it  has  been  held  that  a  tenant,  hav- 
ing no  right  to  assign  or  underlet,  has  no  interest  which 
is  subject  to  levy  and  sale  under  execution.^^'  This 
question  has  nev(T  received  any  thorough  or  satisfac- 
'  tory  consideration  from  the  courts.  So  far  as  consid- 
ered and  determined,  the  view  sustained  by  the  weight 
of  authority  is,  that  conditions' in  leases  forbidding  as- 
signments or  underletting  were  intended  by  the  parties 
to  apply  only  to  the  voluntary  acts  of  the  tenant,  and, 
hence,  that  a  lease  is  not  forfeited  by  any  transfer  made 
by  operation  of  law,  included  in  which  are  sales  under 
execution,  unless  it  is  apparent  that  such   sales  were 

"2  Moser  v.  Tucker,  87  Tex.  94;  Boone  v.  First  N.  B.,  17  Tex.  Civ. 
A  pp.  3G5. 


§  120   PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     49(> 

brought  about  by  the  tenant  for  the  purpose  of  evading 
the  conditions  of  the  lease  against  transfers  thereof. ^^* 
To  hold  otherwise  is,  in  effect,  to  permit  the  creation  of 
valuable  interests  in  lessees  which  may  be  held  by  them 
in  defiance  of  the  demands  of  their  creditors.  On  the 
other  hand,  it  may  be  argued  that  a  landlord,  by  in« 
serting  a  covenant  of  this  character  in  his  lease,  shows 
that  he  intends  to  deal  with  the  lessee  personally,  and 
is  unwilling  to  accept  others  as  his  tenants,  or  to  per- 
mit them,  without  his  consent,  to  occupy  his  property, 
and  to  enforce,  against  his  protest,  a  sale  of  the  tenant's- 
interest  under  execution  is  to  require  him  to  accept  a 
new  tenant,  contrary  to  the  stipulations  of  his  lease, 
and  to  suffer  the  great  loss  which  may  result  to  him 
from  the  diminution  in  value  of  the  leased  premises, 
through  the  bad  faith  or  inefficient  character  of  such 
substituted  tenant. 

§  120.  Property  Pawned  or  Pledged.— A  pawn  or 
pledge,  unlike  a  mere  lien,  "gives  an  actual,  though 
qualified,  property  in  the  thing  pawned  to  the  credi- 
tor"; but,  unlike  a  mor-tgage,  it  does  not  divest  the 
debtor  of  the  legal  title  to  his  property.^**  There  re- 
mains in  the  debtor  a  legal  interest  such  as  the  law  will 
recognize.  The  only  obstacle  to  the  sale  of  pledged 
property  under  execution  against  the  pledgor  is  that 
the  pledgee,  being  entitled  to  the  possession,  the  officer 
has  no  right  to  seize  upon  the  property  in  violation  of 
the  rights  of    the  pledgee.     Hence,  at  common    law, 

213  Ttijrjrs  V.  Pinsoll.  Ofi  N.  Y.  10?,:  Jnrkson  v.  SilTornail.  in  ,Tohng> 
278:  .Tarkson  v.  Corliss.  7  Johns,  nrjl:  Smith  v.  Putnam.  3  Pick.  221; 
Mitohinson  v.  Carter.  8  T.  R.  57.  rjOO. 

214  Turner  on  Contract  of  Pawn.  29:  Corelyon  v.  Lansin?.  2  Caincs 
Cas.  20():  Barrow  v.  Paxton.  f.  Johns.  2r)8,  4  Am.  Dor.  P,'A;  Brown  v. 
Bement,  8  Johns.  97;  McLean  v.  Walker,  10  Jolius.  471. 


497  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  12C 

pledged  property  could  not  be  taken  under  execution, 
against  the  pledgor,  without  first  divesting  the  pledgee's 
right  of  possession  by  paying  or  tendering  to  him  the 
amount  of  his  debt,"*^  and  we  apprehend  that,  when- 
ever the  right  to  seize  pledged  property  under  execu- 
tion is  claimed,  it  must  be  denied,  unless  some  statute 
can  be  referred  to  expressly  or  impliedly  authorizing 
such  seizure.^*® 

Upon  the  voluntary  surrender  of  the  property  to  the 
officer  by  the  pledgee,  it  may  doubtless  be  sold  under 
execution.^*''  In  the  United  States,  there  are  several 
decisions  holding  the  interest  of  a  pledgor  to  be  sub- 
ject to  levy  and  sale,  independently  of  statutes  declar- 
ing it  to  be  so.-***  The  rights  of  the  pledgee  were  pre- 
served by  requiring  the  property  to  be  returned  to  his 
possession  after  the  sale.  In  some  of  the  states  the 
right  to  seize  pledged  property  under  a  writ  against  the 
pledgor  is  given  by  statute.  The  rights  of  the  pledgee 
are  protected  under  some  of  these  statutes,  by  requiring 
the  judgment  creditor  to  pay  the  amount  due  before 
taking  the  property  from  the  pledgee;  ^*^  under  others, 

«i5  Lejrg  V.  Evans.  6  Meos.  &  W.  3G:  9  L.  .T..  N.  S..  Ex.  102;  Rogers 
V  Kenay,  15  L.  J.,  N.  S.,  Q.  B.  381;  Story  on  Bailments,  sec.  353; 
Vlner's  Abr..  tit.  Pawn,  citing  Waller  t.  Hanger.  3  Bulst.  17;  Cogs 
V.  Bernard.  3  Holt,  528;  Scott  r.  Scholey.  8  East.  4G7;  Badlam  v. 
Tucker.  1  Pick.  380.  11  Am.  Dec.  202;  Moore  v.  Hitchcock,  4  Wend. 
202;  Pomeroy  v.  Smith,  17  Pick.  85;  Stief  v.  Hart.  1  N.  Y.  28.  In 
Pennsylvania,  the  officer  may  sell,  though  he  cannot  seize,  pledged 
goods.  Strodes  v.  Caven.  3  Watts,  258;  Baugh  v.  Kirkpatrick,  54 
Pa.  St.  84,  93  Am.  Dec.  675. 

216  Neil!  V.  Rogers  P.  Co.,  41  W.  Ya.  37. 

21T  Mower  v.  Stickney,  5  Minn.  .397. 

sisBakewell  v.  Ellsworth,  G  Hill.  484;  Stief  v.  Hart.  1  N.  Y.  20; 
Williams  v.  Gallick.  11  Or.  .337;  McConeghy  v.  McCaw,  31  Ala.  447; 
Mech.  B.  Sc  I..  A.  v.  Conover.  14  N.  J.  Eq.  219. 

219  Mills'  Ann.  Stats.  Col.,  sec.  2738:  Rev.  Stats.  Me.,  1883,  p,  725^ 
sec.  20:  Pub.  Stats.  Mass.  1882,  e,  IGl,  sees.  74-78. 
Vol.  I.— 32 


«120   PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     403 

this  paTiiient  need  not  be  made  except  from  the  pro- 
ceeds of  tlie  sale."'^  In  Indiana  and  Louisiana,  the 
right  to  seize  and  sell  does  not  seem  to  depend  on  any 
prior  payment  of  the  amount  due.^^^  In  several  other 
states  the  right  to  levy  and  sell  is  conferred  by  statutes, 
subject  to  the  rights  of  the  pledgor,  but  without  stat- 
ing whether  the  property  may  be  taken  from  the  pos- 
session of  the  pledgee  without  first  paying  the  sum  due 
him.'^^  In  New  York,  Pennsylvania,  Texas,  and  Wis- 
consin the  pledge  WiHj  be  levied  on  and  sold,  but  with- 
out disturbing  the  possession  of  the  pledgee."'*^  In 
Vermont,  the  levying  officer  may  seize  the  property, 
and  then  demand  of  the  pledgee  a  w^ritten  statement  of 
the  amount  due  under  oath,  and  the  creditor  may  pay 
the  same  within  a  designated  time,  and  thereupon  be- 
come subrogated  to  the  rights  of  the  pledgee."^*  The 
jiledgee  may  levy  on  the  pledged  property  under  a  writ 
in  his  favor  against  the  pledgor.  The  effect  of  such  a 
levy  upon  the  pledgee's  lien  is  in  doubt,  some  of  the  au- 
thorities intimating  that  it  is  a  waiver  thereof,  and  oth- 
ers insisting  that  it  is  not."^  Whether  the  interest  of  a 
pledgee  is  subject  to  levy  and  sale  is  a  question  which 
has  received  very  little  consideration.  As  he  has  a 
beneficial  interest,  accompanied  by  a  rightful  posses- 

22©  Code  Gn..  1R05.  sec.  2002. 

221  Ann.  Rev.  Stnts.  Inrl..  1S94.  sec.  7^4:  Rev.  Code  Vr.  La.  1S94, 
fioc.  043;  Horn  v.  Dennis,  34  Lfi.  Ann.  380. 

222  Howell's  Ann.  Stats.  M\oh..  18R2.  sec.  7082:  Ptats.  Minn.,  1894, 
sec.  5458;  Oen.  Laws  N.  H.  1878,  c.  236,  sees.  3,  4. 

223  Sec.  1412,  Code  Giv.  Proc;  Reichenbach  v.  ;MfKpnn.  95  Pa.  St. 
432;  Sayle's  Tex.  Civ.  Stats,,  1897,  sec.  2353;  Ann.  Stats.  Wis.,  1889, 
sec.  2988. 

224  Rev.  Laws  Vt.,  1S80,  sees.  1180-1185. 

225  .Tones  on  Plodiros.  sees.  509-001;  Arendale  v.  IVforc^.nn.  5  Snoed, 
703;  Sickles  v.  Riohardson,  23  Hun,  559;  Legg  v.  W'illard,  17  Picli. 
140,  28  Am.  Dec.  282. 


499  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  IJO 

sion,  there  seems  to  be  no  reason  for  denying  to  his 
creditor  the  power  to  reach  such  interest  under  execu- 
tion.--'** AVith  respect  to  subjecting  to  execution  the 
interest  of  the  pledgor  by  garnishment  or  trustee  pro- 
cess served  upon  the  pledgee,  the  rule  is,  in  the  absence 
of  statutory  regulation,  the  same  as  in  the  case  of  direct 
levy  and  sale.  The  right  to  garnish  such  property  is 
denied,  on  the  ground  that  no  property  can  be  reached 
by  this  proceeding  except  that  which  is  subject  to  exe- 
cution."-' 

If  the  pledgee  chooses  to  waive  his  rights,  there  is 
no  impediment  to  the  levy  upon  and  sale  of  pledged 
property  under  a  writ  against  the  pledgor.  It  has 
been  held  in  one  case  that  a  levy  by  a  pledgee  upon 
pledged  property  was  not  a  waiver  of  his  rights  under 
his  pledge.--**  This,  if  ever  true,  is  true  only  in  ex- 
ceptional circumstances.  The  pledgee  may,  doubtless, 
cause  the  levying  of  execution  upon  pledged  property, 
whether  the  writ  is  based  on  the  judgment,  founded 
upon  the  indebtedness,  to  secure  which  the  pledge  was 
made,  or  upon  some  other  debt.  The  election  of  the 
pledgee  to  proceed  in  this  manner  must  ordinarily  be 
treated  as  a  waiver  or  termination  of  his  pledge.--^ 
Such  must  necessarily  be  the  case  if  he  parts  with  pos- 
session, for,  without  possession,  there  can  be  no  pledge. 
The  levy  upon  the  pledged  property,  at  the  instance  of 

--0  Turner  on  Contract  of  Pawn.  ISO;  Sanl  v.  Krnjrer,  9  How.  Pr. 
569.  "It  seems  to  have  been  formerly  tbouslit  that  goods  pledged 
could  not  be  taken  in  execution  at  all  for  the  debt  of  the  pawnee." 
Turner,  p.  189,  citing  Com.  Dig.,  tit.  Mortgage,  A;  Moses  v.  Couham. 
Owen,  124. 

:-7  Whitney  v.  Dean,  5  N.  H.  249;  Howard  v.  Card.  6  Grocnl.  3.53; 
Kergin  v.  Dawson.  1  Gilm.  8G;  Patterson  v.  Harland.  12  Ark.  158. 

-2s  Arendale  v.  Morgan,  5  Sneed,  703. 

:23Legg  V.  Millard,  17  Pick.  140,  28  Am.  Dec.  282;  Jacobs  v. 
T.atour,  5  Bing.  130. 


§  120       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  600 

the  pledgee,  is  valid,  because  it  is  no  longer  pledged, 
and  its  sale  must  vest  title  in  the  purchaser,  free  of 
the  claims  both  of  the  pledgor  and  of  the  pledgee.^** 

We  have  met  with  no  cause  considering  an  attempt 
to  subject  to  execution  the  interests  of  a  pledgee  in 
the  pledged  property.  He  has  neither  a  legal  nor  an 
equitable  title,  and  hence  apparently  has  no  interest 
subject  to  levy  under  execution  in  the  ordinary  mode, 
though  he  often  has  a  right  of  possession  for  a  defin- 
ite period.  Indirectly,  his  interest  may  probably  be 
reached,  as  by  garnishment  or  some  other  proceeding, 
by  which  his  debt  may  be  transferred  to  his  creditor, 
for  the  latter,  upon  becoming  the  owner  of  the  debt, 
must  also  become  entitled  to  the  right  to  enforce  any 
lien  existing  to  secure  its  payment. 

Of  course,  if  a  pledge  is  valid,  no  proceeding  taken 
against  the  pledgor  only  can  affect  the  rights  of  the 
pledgee.  Therefore,  if  the  pledge  has  been  effected  by 
the  indorsement  and  delivery  of  certificates  of  cori^o- 
rate  stock  to  the  creditor,  but  no  entry  or  transfer  has 
been  made  upon  the  books  of  the  corporation,  such 
stock  cannot  be  levied  upon,  though  the  execution 
creditor  has  no  notice  of  the  pledge.'^^  So,  if  an  officer 
disregards  the  rights  of  a  pledgee  by  forcibly  taking 
property  from  his  possession  and  levying  a  writ  there- 
upon, this  wrongful  act  does  not  impair  the  pledgee's 
lien.^''^  Though  statutes  of  the  state  authorize  the  in- 
terest of  a  pledgor  to  be  sold  under  execution,  an  of- 
ficer is  not  entitled  to  disturb  the  possession  of  ihe 

230  Swett  V.  Brown,  5    Pick.  178;  Whitakor  v.  Sumner,  20    Pick. 
399;  Sickles  v.  Richardson,  23  Tlxm,  559. 

231  Port  Townsend  N.  B.  Co.  v.  Port  Townsend  G.  &  F.  Co.,  6 
Wash.  .597. 

232  Lewis  V.  Dillard,  7G  Fed.  Rep.  688. 


501  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION,        §  121 

pledgee,  and,  if  he  does  so,  he  commits  a  trespass  for 
which  he  is  personally  auswerabler^^  It  is  clear  that 
some  remedy  ought  to  exist  to  reach  the  interests  of 
pledgors  witliout  im[)airing  the  rights  of  pledgees;  and 
also  that  the  remedy  which  will  best  accomplish  these 
two  objects  is  by  garnishment.  Statutes  have,  there- 
fore, been  enacted  in  many  of  the  states  extending  that 
remedy  so  as  to  reach  the  interest  of  pledgors  in  prop- 
erty while  m  the  possession  of  pledgees.^^'* 

§  121.  Estates  of  Bailees.— The  mere  fact  that  prop- 
erty is  in  the  possession  of  a  bailee  interposes  no  ob- 
stacle to  its  seizure  under  an  execution  against  its 
owner.^^'*  When  the  contract  of  bailment  is. such  a» 
to  give  the  bailee  some  beneficial  interest  in  the  prop- 
erty, the  case  is  different.  An  officer,  acting  under  an 
execution,  cannot,  by  his  levy,  obtain  nor  transfer  any 
greater  interest  in  the  property  than  was  possessed  by 
the  defendant  at  the  time  of  the  levy.  Hence,  if  a 
bailee  has.  ns  against  the  owner,  the  right  to  retain 
possession  of  the  property  for  a  specified  time,  he  has 
the  same  right  as  against  an  officer  proceeding  under  a 
writ  against  the  owner.  The  officer  cannot,  in  such  a 
case,  lawfully  seize  the  property.^^*^  He  can  only  sub- 
ject it  to  execution  where  some  statute  has  provided 

233  Dixon  r.  W^iite  S.  M.  Co.,  128  Ta.  St.  397,  lo  Am.  St.  Rep. 
683.  W\^lsh  V.  Boll.  32  Pa.  St.  16. 

2S4  Soe  soo.  54.'),  Code  Cir.  Proe.  of  Cal.:  Treadwell  v.  Davis,  34  Cal. 
€01.  94  Am.  Dec.  770:  Rev.  Stats.  Me..  1SS3.  p.  72,"j.  sec.  29;  Howell's 
Ann.  Stats.  Mich..  ISRZ  sec.  7GS2:  Aldrich  r.  Woodcock.  10  X.  TT. 
90:  ITushes  v.  Corey,  20  Iowa,  399;  Carty  v.  Fensteniakcr.  14  Ohio 
St.  457;  Blake  v.  Hatch.  25  Vt.  555;  Meyer  v.  Miller,  51  Neb.  G20: 
Avery  v.  Monroe.  172  Mass.  132. 

22r,  Thomas  v.  Thomas,  2  A.  K.  Marsh.  430;  Beale  v.  Diggcs,  G 
Gratt.  582. 

2.16  liartford  v.  Jackson,  11  N.  H.  145. 


§§  122,  123    PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     502 

him  with  the  means  of  reaching  property  of  which  he 
is  not  authorized  to  take  possession. 

§  122.  Estates  in  Reversion  or  Remainder.— The  diffi- 
culty suggested  in  tlie  preceding  section,  of  levying  an 
execution  on  the  goods  of  a  bailor  while  the  bailee  haS" 
the  right  to  continue  in  possession,  is  also  to  be  met  in 
all  cases  where  an  execution  is  ought  to  be  levied  on 
an  estate  in  reversion  or  remainder  in  chattels.  In 
such  a  case  the  owner  of  the  estate  in  possession  need 
not  surrender  the  property  to  the  sheriff;  and  it  seems 
to  be  conceded  that,  on  common-law  principles,  the  of- 
ficer cannot  sell  property  of  w^iich  he  cannot  take  pos- 
session. Hence,  it  has  been  held  that  an  estate  in 
reversion  or  remainder  cannot  be  sold  under  execution 
at  law.^^''  But  in  North  Carolina  a  sale  under  execu- 
tion of  an  estate  in  reversion  or  remainder  was  sus- 
tained, the  owner  of  the  estate  in  possession  having 
produced  the  property,  and  had  it  present  at  the 
sale.^^**  An  estate  in  remainder  in  chattels  is  now  lia- 
ble to  attachment  under  the  statutes  of  Tennessee.^^® 

§  123.  Inchoate  Interests.— There  may  be  inchoate 
interests  in  property  which  do  not  become  settled  nor 
perfect  until  the  lapse  of  a  specified  time,  or  the  per- 
formance of  certain  conditions.  Thus,  the  owner  of  a 
flock  of  sheep  may  give  them  into  the  custody  of  some 
other  person,  on  an  agreement  by  Avhich,  in  considera- 
tion of  care  to  be  bestowed,  such  person  is  to  become 

237  Allen  V.  Scurry,  1  Yore  36,  24  Am.  Dor.  4?,G:  nnto  to  Strinsr- 
fellow  V.  Brownesoppo,  Dyer,  G7  1);  Sale  v.  Snundcrs,  24  Mi.ss.  .38, 
57  Am.  Dec.  157;  Goode  v.  Longmiro,  ori  Ala.  GG8;  Smith  v.  Niles,  20 
Vt.  .31.5,  49  Am.  Dec.  7.S2. 

238Blanton  v.  Morrow,  7  Irod.  Eq.  47,  53  Am.  Doc.  .391;  Knight  v» 
Leak.  2  Dev.  &  B.  133. 

239  I.ockwood  V.  Nye,  2  Swan,  515,  58  Am.  Dec.  73. 


603  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        g  123 

entitled  to  all  or  some  portion  of  the  wool  to  be  grown 
on  such  sheep.    In  such  case,  it  has  been  held  that  the 
owner  continued  to  be  the  owner  of  the  sheep  and  of 
the  wool  until  shearing:  time,  or  until  a  full  perform- 
ance of  the  conditions  of  the  agreement;  and, therefore, 
that  the  other  person  had  no  interest  in  the  wool,  prior 
to  shearing  time,  which  was  subject  to  execution.""*" 
Two  bands  of  sheep  were  leased,  for  the  i)urpose  of  be- 
ing kept  by  the  lessees  until  a  date  designated,  at  which 
time  they  were  to  be  delivered  to  the  lessors  with  one- 
half  of  the  increase,  less  fifteen  per  cent  of  the  original 
number,  the  remaining  part  of  the  increase  to  be  re- 
tained by  the  lessees  for  the  care  given  to  the  sheep. 
If   the  loss  of   the  sheep  proved  greater  than  fifteen 
per  cent,  the  lessees  were  to  make  it  up  out  of  other 
sheep  of  the  same  grade.    The  title  to  the  sheep  and 
their  increase  was  to  remain  in  the  lessors  until  their 
share  of  the  increase  should  be  delivered   to  the  les- 
sees.    They   surrendered   possession  of   one    baud    of 
sheep  to  the  lessors,  including  in  which    were  fifty- 
eight  more  sheep  than  the  latter  were  entitled  to  out 
of  that  band,  but  it  was  agreed  that  these  might  be 
kept  to  make  good  any  loss  which  might  be  found  to 
have  taken  place  in  the  other  band  when  a  final  di- 
vision should  be  made,  according  to  the  terms  of  the 
lease.     AVrits  issued  against  the  lessees,  under  which 
the  sheriff  seized  sheep  in  the  possession  of  the  les- 
sors, but  it  was  held    that  the  lessees  had    no  inter- 
est in  the  sheep  which  was  subject  to  execution.^^* 
A  large  number  of  sheep  were,  by  their  owner,  placed 
in  possession  of  another  jDerson,  to  be  cared  for  and 
furnished  with  feed  until  ready  for  market.    He  was  to 

240  Hasbronc'k  v.  Bouton.  00  Bnrl).  41^;  41  How.  Pr.  20S. 

241  Sweeuey  v.  Darcy    (Mont.),  53  Pac.  540. 


§  l'2-3       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  604 

be  paid  for  liis  services  to  tlie  sheep  what  they  would 
bring  in  the  market  over  the  first  cost,  cost  of  ship- 
ment, feed,  commission  for  sale,  and  interest  on  the 
money  invested.    Writs  issued  against  the  person  who 
had  received  the  sheep  under  this  contract  and  cared 
for  and  fed  them,and  the}'  were  levied  upon  as  his  prop- 
erty.    An  action  of  replevin  was  thereupon  brought 
against  the  levying  officer  by  the  owners  of  the  sheep, 
and  the  court,  in  construing  the  contract,  held  that  it 
did  not  create  any  partnership  between  the  owner  and 
the  person  furnishing  the  care  and  feed,  nor  any  prop- 
erty interest  whfftsoever  in  the  latter,  and,  hence,  that 
a  judgment  against  the  officer  was  proper.^^^    Similar 
principles  apply  to  the  owner  of  lands  and  a  cropper 
thereon,  when  the  former  is  to  have  one-half  of  the 
crop  "in  the  half-bushel."     In  this  and  similar  cases, 
it  is  considered  that  the  title  belongs  to  him  who  has 
raised  the  crop,  "until  it  is  threshed,  measured,  and 
one  part  set  off  to  the  landlord";  until  this  division  is 
made,  the  landlord's  part  is  not  subject  to  execution.^^^ 
A  father,  owning  a  large  and  well  stocked  farm,  en- 
tered into  an  agreement  with  his  son  to  take  the  con- 
trol and  management  of  it,  and  of  all  the  livestock 
and  implements  of  husbandry  thereon,  to  maintain  re- 
pairs, pay  taxes,  replace  stock  disposed  of,  and  to  have 
for  his  own  the  net  proceeds.    This  agreement  was  sub- 
ject to  be  determined  at  any  time  at  the  pleasure  of 
either  party.     The  son,  after  acting  under  the  agree- 
ment for  several  years,  became  financially  embarrassed, 
and  the  question  of  whether  he  had  any  interest  sub- 
ject to  execution  arose.    The  court  held  that  the  ar- 

242  McNamara  v.  Godair,  161  111.  228. 

243  Williams  v.  Smith,  7  Ind.  559;  Gordon  v.  Armstrong,  5  IrecL 
409;  Deaver  v.  Ilice,  4  Dev.  &  B.  431,  34  Am.  Dec.  388. 


505  PERSONAL  rilOl'EilTV  SUJiJlCCT  TO  KXKCL'TIOX.        §   123 

rangoiiiont  did  not  croate  the  relation  of  laiidhjid  and 
tenant,  but  rather  that  of  master  and  servant,  that  it 
was  a  bailment  which  did  not  vest  any  interest  in  the 
son,  either  in  the  property  placed  in  liis  hands  by  the 
father  or  in  the  proceeds  thereof,  though,  wliih*  tlie  re- 
lation continued,  the  son  had  power  to  sell  without  fur- 
ther authority  from  his  father,  ;ind,  finally  that  the  son 
had  no  interest  subject  to  execution."*^     So  where  A 
was  to  cut  down  trees  and  haul  the  l(»jj;s  to  a  certain 
place  for  market,  and  B,  the  owner  of  the  land,  was  to 
sell  the  lo^s,  and,  and  after  deducting  stumpage  and  ad- 
vances made  for  supplies,  was  to  pay  A  the  balance, 
it  was  held  that  A  had  no  interest  in  the  logs  subject 
to  execution.-**^    If  a  land-owner  stocks  his  farm  and 
puts  it  in  charge  of  a  tenant,  under  an  agreement  that 
the  tenant  shall  have  one-half  of  the  growth  of  the 
stock  and  one-half  of  the  wool  produced  by  th?  sheep, 
the  latter,  prior  to  the  expiration  of  his  lease,  has  a 
mere  inchoate  interest,  which  is  not  subject  to  execu- 
tion."^"    If,  however,  one  obtains    the    ownei-ship   of 
property,  with  a  light  to  its  possession,  his  title  is  not 
to  be  regarded  as  inchoate  merely  because  he  has  not 
paid  for  it.    Thus,  where  a  contract  was  entered  into, 
by  the  terms  of  which  the  ownt^rs  of  a  stone  quarry 
l>ermitted  certain  contractors  to  quarry  and  remove 
stone  for  two  outlet  locks  in  the  Pennsylvania  canal, 
the  quantity  to  be  ascertained  by  measurement  when 

24*  Hatch  V.  Helm,  86  Fed.  Hop.  4,m 

245  Pelton  V.  Temple,  1  Hann.  (N.  B.)  2~:^.  See  Provis  v.  Clieves. 
0  R.  I.  53,  98  Am.  Dec.  867.  But  in  cases  like  tliose  referred  to  in 
the  above  section,  it  may  be  that  the  defendant  has  a  special  in- 
terest subject  to  execution.  See  Weaver  v.  Darby.  42  Harb.  411. 
where  D.  was  to  cut,  hew.  and  raft  certain  timber  to  be  sold  by  B.. 
nnd  D.  was  to  have  ten  and  one-half  cents  per  cubic  foot  for  the 
timber  sold. 

2*6  Smith  V.  Meech,  26  Vt.  233. 


§  124       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  506 

in  the  locks,  and  to  be  paid  for  as  soon  as  payments 
were  made  to  contractors  on  the  canal,  it  was  held 
that  as  soon  as  the  stone  was  quarried,  though  it  re- 
mained at  the  mouth  of  the  quarry,  it  was  subject  to 
execution  against  the  contractors,  on  the  ground  that 
the  land-owner  had  trusted  to  their  personal  responsi- 
bility.'^^ 

§  124.  Conditional  Sales.— In  Martin  v.  Mathiot,24« 
property  was  delivered  into  possession  of  a  person  un- 
der an  agreement  that  the  title  w^as  not  to  pass  until 
he  made  payment  of  a  sum  stipulated  as  the  purchase 
price.  This  transaction  was  regarded  by  the  court  as 
fraudulent  as  against  the  creditors  of  the  person  in 
possession;  and  they  were  therefore  allowed  to  seize 
the  property  under  execution.  It  was  said  that,  by  en- 
couraging such  transactions,  people  would  be  enabled 
to  obtain  a  fictitious  credit,  by  bein^^  invested  with  the 
apparent  ownership  of  the  property  of  others;  and  that 
creditors  would  necessarily  be  defrauded.  In  a  subse- 
quent case  of  a  conditional  sale  in  the  same  state, 
where  there  was  no  open,  visible  change  of  possession, 
it  was  held  that,  as  nothing  had  been  done  to  deceive 
creditors,  they  could  not  seize  upon  the  property  as 
that  of  the  vendee.-^^  With  the  exception  of  the  case 
first  referred  to,  conditional  sales  have  been  every- 
where upheld.  Contracts  of  this  character  have  been 
supposed  to  be  well  calculated  to  promote  fraud  and  to 
expose  innocent  purchasers  to  the  peril  of  loss  from 
dealing  with  persons  as  owners  of  property,  because 

247  Watts  V.  Tibbals.  6  Pa.  St.  447. 

248  14  Serj;.  &  R.  214,  16  Am.  Dec.  491.     Seo  TTank  v.  Lindorman, 
64  Pa.  St.  400.  3  Am.  Rf-p.  fil2:  Ketohnni  v.  W'atson,  24  111.  592. 

249  Lehigh  Co.  v.  Field,  8  Watts  &  S.  232. 


607  PERSONAL  PROPEIITY  SUBJECT  TO  EXECUTION.        §  124 

thej  had  been  invented  with  the  ordiuary  indicia  of 
ownership.  Hence,  in  several  states,  statutes  have  been 
enacted,  requiring  contracts  for  conditional  sales  to  be 
in  writing  and  to  be  recorded  in  some  public  office,  and, 
where  these  statutes  are  not  complied  with,  the  salc^ 
are  treated  as  absolute  against  the  vendor,  and,  hence, 
third  persons  may  safely  deal  with  the  vendee  in  pos- 
session, unless  the  contract  of  sale  has  been  executed 
and  recorded  as  prescribed  by  statute,  or  they  have 
otherwise  been  given  notice  thereof.  Such  substan- 
tially are  the  statutes  of  Connecticut,'''^*  Georgia,''*'*^ 
Iowa,-''"'"  Kansas,-''" '^  :Maine,-"'*' '^  Minnesota,-''*"^  Mis- 
issippi,  -^*^ '  Missouri,^^**  ^  Nebraska,^^**  ^  New  Hamp- 
shire,2=<*  i  ^ew  Jersey,^^^  ^  New  Yorlv,-="  ^  North  Caro- 
lina,2^<*  ^  Ohio,-=<*  °^  South  Carolina,--'"  "  Texas,^-'"  °  Ver- 
montr''**P   Virginia,-^"  ^1   Washington,--'"  «■   West    Yir- 

250  Lee  Brothers  i^'.  Co.  v.  Cram,  G3  Conn.  4.33. 

25oa]sranu  v.  Thompson,  86  Ga.  347;  Rhode  Island  L.  W.  v.  Em- 
pire L.  Co.,  91  Ga.  639. 

250b  Wright  V.  Barnard,  89  la.  160;  Pash  v.  Weston,  52  la.  675. 

2."i0c  First  N.  B.  v.  Tufts.  53  Kan.  710. 

25od  Holt  V.  Knowlton.  SO  Me.  456;  Field  v.  Gellerson,  80  Me.  270. 

25oe  Kiniioy  v.  Cay,  30  Minn.  210. 

250f  Tufts  T.  stone,  70  Miss.  54;  .Tennin.cs  v.  Wilson,  71  Miss,  42. 

25og  Oestor  v.  Sitlington,  115  Mo.  247;  Bodenl'.aush  v.  Kelton,  130 
Mo.  558;  Peters  v.  Featherstun,  01  Mo.  App.  400. 

25oh  Peterson  v.  Tufts,  34  Neb.  8;  McCormick  H.  M.  Co.  v.  Gallon, 
48  Neb.  840. 

2601  Gerrish  y.  Clark,  64  N.  11.  492. 

250j  Knowlcs  L.  W\  v.  Vacher,  57  N.  J.  L.  490. 

250k  Moyor  v.  Molntyre.  43  Hun,  58. 

26oiBri"ni  V.  Lockhart,  93  N.  C.  101;  Clark  v.  Hill,  117  N.  C.  Ill, 
53  Am.  St.  Ren.  574. 

250m  Weil  V.  State,  46  Oh.  St.  450. 

250n  Herring  v.  Cannon,  21  S.  C.  212.  53  Am.  Rep.  661. 

2500  Loving  P.  Co.  v.  Johnson,  08  Tex.  27:»;  Knittel  v.  Gushing. 
57  Tex.  354,  44  Am.  Rep.  598;  Parlin  v.  Harrell,  8  Tex.  Civ.  App. 
368. 

250p]si,.phai!  V.  Gerry.  ,55  Vt.  174:  Church  v.  McLeod.  .58  Vt.  541. 

260q  Hasli  V.  Lore,  88  Va.  716;  Callahan  v.  Young.  90  Va.  574. 

250r  Peterson   v.  Woolery.  0  Wash.   .".!)(l. 


§  1-24   PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     508 

gmiar''^^  and  Wisconsin.-"'**'^  These  statutes  make 
it  very  desirable,  in  the  several  states  in  which 
they  are  in  force,  to  be  able  to  determine  when  a 
contract  or  transaction  amounts,  in  contemplation 
of  law,  to  a  conditional  sale.  In  other  states  are 
statutes  in  effect  declaring:  that  mortgages  of  chat- 
tels must  be  executed  and  recorded  in  the  modes  pre- 
scribed, to  be  effective  against  creditors  and  subsequent 
purchasers  and  incumbrancers,  and,  under  these  stat- 
utes, contracts  which  purport  to  be  leases  or  condi- 
tional sales  may  be  challenged  on  the  ground  that  they 
are  in  substance  mortgages  not  executed  or  recorded 
in  the  mode  prescribed. 

The  transactions  which  have  received,  and  must  con- 
tinue to  invite,  the  most  frequent  judicial  considera- 
tion for  the  purpose  of  determining  whether  or  not 
they  are  conditional  sales  ai'e  (1)  the  consigning  of 
goods  to  a  dealer,  factor,  or  other  agent  with  authority 
to  sell  them,  but  seeking  to  retain  title  in  the  principal 
or  vendor,  and  at  the  same  time  to  make  the  agent 
or  dealer  responsible  for  the  purchase  price  or  for 
the  value  of  the  goods;  (2)  leases  which  contemplate 
that  the  lessee  shall  become  the  owner  of  the  leased 
property  on  the  payment  of  a  designated  sum  or  sums 
at  the  times  and  in  the  manner  specified  in  the  con- 
tract: and  (3)  professed  sales  in  which  the  vendor  stipu- 
lates that  he  shall  retain  title  until  full  payment  is 
made  of  the  purchase  price.  In  the  first  place,  it  may 
be  conceded  that  the  legal  effect  which  the  parties  at- 
tribute to  their  contract,  or  the  name  by  which  they 

250s  P,aldwin  v.  Van  Wagner,  'iP>  W.  Va.  293, 

25ot  Kellogg  V.  Costello,  93  Wis.  232;  Sheldon  Co.  v.  Mayors,  81 
Wis.  627. 


509  PERSONAL  PROPERTY  SUBJECT  TO  EXE'  UTIOX.        §  124 

designate  it,  is  not  controlling,  and  that  it  is  their  real 
intention  or  purpose,  as  manifested  by  the  terms  of 
their  contract,  which  must  be  given  effect. ''"^^ 

The  fact  that  possession  is  delivered  under  a  con- 
tract of  sale  does  not  enlarge  the  rights  of  the  vendee; 
nor  does  it  authorize  his  creditors  to  regard  the  sale 
as  absolute.  Until  the  purchase-money  is  paid,  or  the 
other  conditions  of  the  contract  are  performed,  the  title 
remains  with  the  vendor,  if  he  so  stipulated  in  his  con- 
tract. The  vendee  is  powerless  to  transfer  a  title  which 
he  does  not  possess,  although  the  purchaser  from  him 
is  ignorant  of  the  true  condition  of  the  title.^'^  This 
rule  has  sometimes  been  held  to  be  inapplicable  as 
against  purchasers  of  the  property  from  the  vendee  in 
possession,  having  no  notice  that  his  title  was  not  ab- 
solute.*^^ 

Ordinarily,  the  vendee  of  a  conditional  sale  has  no 
interest  subject  to  execution.^^*    Or,  more  accurately 

SBi  Andrew  v.  State  Savings  Bank.  20  Colo.  313.  46  Am.  St.  Rep. 
291;  Foster  v.  Ropes.  Ill  Mass.  10:  Hamilton  v.  Gordon.  22  Or.  5.")7; 
Rnffier  v.  Womack.  30  Tex.  332;  Hudson  v.  Wilkinson.  45  Tex.  444. 

252  Kohler  v.  Hayes,  41  Cal.  455;  Ash  v.  Putnam,  1  Hill,  302; 
Bailey  v.  Harris,  8  Iowa,  331,  74  Am.  Dec.  312;  Sargent  v.  Met- 
calf,  5  Gray,  306,  66  Am.  Dec.  30.S:  Wliitwell  v.  Vincent.  4  Pick. 
449,  16  Am.  Dec.  355;  Baker  v.  Hall,  15  Iowa,  279;  Dunbar  v. 
Rawles,  28  Ind.  225.  92  Am.  Dec.  311;  Ballard  v.  Burgett.  40  N.  Y. 
314;  Lane  v.  Borland,  14  Me.  77,  31  Am.  Dec.  33;  Luey  v.  Bnndy, 
9  N.  H.  208.  32  Am.  Dec.  359;  Burbank  v.  Crooker.  7  Gray,  158.  G6 
Am.  Doc.  470;  Ketchum  v.  Brennan.  53  Miss.  596;  Mount  v.  Harris, 
1  Smedes  &  JI.  185.  40  Am.  Dec.  89;  note  to  Palmer  v.  Howard,  1 
Am.  St.  Rep.  63:  Rose  v.  Story,  1  Pa.  St.  190.  44  Am.  Dec.  121; 
Crocker  v.  Gullifer,  44  Me.  491,  69  Am.  Dec.  118;  Hirschorn  v.  Can- 
ney,  98  Mass.  150;  Cole  v.  Berry,  42  N.  J.  L.  308. 

253  Jones  V.  Clark.  20  Colo.  353;  George  v.  Tufts.  5  Colo.  192; 
Murch  V.  Wright.  46  111.  487.  95  Am.  Dec.  455;  Lucas  v.  Campbell, 
88  111.  447;  Van  Duzor  v.  Allen.  90  111.  499. 

254  Sage  V.  Sleutz.  23  Ohio  St.  1:  Gambling  v.  Read.  Meigs.  281; 
Buckmaster  v.  Smith.  22  Vt.  20:i;  Woodbury  v.  Long.  S  Pick.  543, 
19  Am.  Dec.  345;  Bigelow  v.  Huntley,  8  Vt.  151;  Herring  v.  Hop- 


§  124       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  510 

speaking,  the  title  retained  by  the  vendor  cannot  be 
taken  away  or  impaired  by  writs  against  the  vendee. 
The  latter,  though  the  sale  is  conceded  to  be  condi- 
tional, may  have  a  valuable  interest  in  the  property. 
The  contract  may  give  him  a  right  to  retain  possession 
for  a  specified  time,  or  as  long  as  he  complies  with  the 
contract  of  purchase,  and,  where  such  is  the  case,  we 
see  no  reason  why  his  interest  may  not  be  subject  to 
execution,  the  purchaser  at  the  execution  sale  acquir- 
ing the  rights  of  the  defendant  in  the  writ,  to  wit,  the 
right  to  take  possession  of  the  property,  and,  on  com- 
pliance with  the  contract  of  purchase,  to  be  vested 
with  the  complete  title   thereto.^^"    It   is    otherwise 

pock,  3  Duer,  20;  15  N.  Y.  409;  Cardinal  v.  Edwards,  5  Ner.  36; 
Hart  V.  Carpenter,  24  Conn.  427;  Strong  v.  Taylor,  2  Hill.  32G; 
Harkness  v.  Russell,  118  U.  S.  6G3;  Bradsliaw  v.  Warner,  54  Ind. 
58;  Blanchard  v.  Child,  7  Gray,  157;  Armington  v.  Houston,  38  Vt. 
448,  91  Am.  Dec.  366;  Rowan  v.  State  Bank,  45  Vt.  160;.  Reeves  v. 
Harris,  1  Bail.  563;  Baylor  v.  Smithers,  1  Litt.  105;  Hussey  v. 
Thornton,  4  Mass.  405,  3  Am.  Dec.  224;  Marston  v.  Baldwin,  17 
Mass.  006;  Clark  v.  Wells,  45  Vt.  4,  12  Am.  Rep.  187;  Barrow  v. 
Coles,  3  Camp.  92;  Barrett  v.  Pritchard,  2  Pick.  512,  13  Am.  Dec. 
449;  Wilder  v.  Stafford,  30  Vt.  399;  Reed  v.  Upton,  10  Pick.  522,  20 
Am.  Dec.  545;  McFarland  v.  Farmer,  42  N.  H.  386;  Lucas  v.  Birdsey, 
41  Conn.  357;  Edgewood  D.  Co.  v.  Shannon,  60  Ark.  133;  Rodgers 
V.  Bachman,  109  Cal.  552;  Ellis  v.  Holland,  98  Ga.  154;  Nichols  v. 
Ashtou,  155  Mass.  205;  Dewes  B.  Co.  v.  Merritt,  82  Mich.  198;  Hart 
V.  Livermore  F.  &  M.  Co.,  72  Miss.  809;  Silver  Bow  M.  Co.  v.  Lowry, 
6  Mont.  288;  Stoddart  v.  Price,  143  Pa.  St.  537;  Russell  v.  Hark- 
ness, 4  Utah,  197,  118  U.  S.  663;  Aultman  v.  Sitka,  85  Wis.  359; 
Gerow  v.  Costello,  11  Colo.  560,  7  Am.  St.  Rep.  260;  McComb  v. 
Donald's  Ad..  82  Va.  903;  Prentiss  T.  etc.  Co.  v.  Sehirmer,  136  N.  Y. 
305,  32  Am.  St.  Rep.  737;  Holt  M.  Co.  v.  Ewing,  109  Cal.  353;  Ver- 
mont M.  Co.  V.  Brow,  109  Cal.  230,  50  Am.  St.  Rep.  37.  For  law  In 
force  In  Iowa,  see  Pittsburgh  L.  &  C.  Works  v.  State  Bank,  8  Chic. 
L.  N.  41;  Moseley  v.  Shattuck,  43  Iowa,  540. 

255  Tanner  v.  Hall,  89  Ala.  628;  Bingham  v.  Vandergriflf,  93  Ala. 
283;  Newhall  v.  Kingsbury.  131  Mass.  445;  Hervey  v.  Diamond,  67 
N.  H.  342;  Ilurd  v.  Fleming,  34  Vt.  169. 


511  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  124 

wTion  the  vendee  has  never  had  any  right  of  possession, 
or,  having  once  had  that  right,  has  hjst  it.^" 

Goods  are  often  consigned  to  a  dealer,  factor,  or  other 
agent  for  the  purpose  of  sale,  and  there  can  be  no  doubt 
that  this  does  not  of  itself  give  liiui  any  interest  in 
them,  subject  to  execution. ''"''  Whether  goods  placed 
in  the  hands  of  another  for  sale  are  so  placed  as  the 
result  of  a  conditional  sale  t<»  him,  or  in  pursuance  of 
an  agreement  that  he  shall  receive  and  sell  them  and 
account  for  the' proceeds,  there  is  no  doubt  that  he  ac- 
quires no  interest  in  them  Miiicli  can  be  subjected  to 
execution  in  prejudice  of  the  rights  of  the  owner.  The 
latter  may,  however,  by  his  contract  seek  to  secure  to 
himself  advantages  which  are  not  consistent  with  any- 
thing less  than  a  sale  of  the  property,  and,  where  such 
is  the  case,  the  transaction  must  be  treated  as  an  ab- 
solute sale,  no  matter  by  what  name  the  parties  thereto 
may  agree  to  call  it.  The  chief  difficulty  is  in  deter- 
mining whether,  when  the  parties  themselves  by  their 
contract  disclaim  a  sale  of  the  property,  such  dis- 
claimer cannot  be  accepted,  because  the  rights  and  ob- 
ligations resulting  from  the  contract  are  consistent 
with  nothing  but  a  sale.  A  contract  by  which  a  per- 
son agrees  to  receive  goods  on  consignment,  to  be  sold 
by  him  as  agent  of  the  owner,  to  make  monthly  re- 
ports of  sales,  all  proceeds  of  sales  to  belong  to  the 
consignor  until  the  contract  price  is  paid  in  cash,  which 
is  to  be  done  for  each  article  as  soon  as  a  sale  is  made, 
and  with  no  provision  for  the  acquisition  of  title  by 
the  consignee,  and  expressly  reserving  such  title  to  the 
consignor,  is  not  a  contract  of  sale,  but   of   bailment 

256  Sage  V.  Sleuth,  23  Oh.  St.  1. 

25T  Berry  v.  Allen.  .W  111.  App.  149;  Bentz  v.  Geissell,  24  Minn. 
1C.9;  Men-ill  v.  Kiiiker,  Bald.  52S. 


§  124       PERSONAL  PROPERiY  SUBJECT  TO  EXECUTION.  512 

merely,  notwithstanding  tlie  contract  provides  tliat  the 
compensation  of  the  consignee  shall  be  whatever  he 
shall  receive  for  the  goods,  above  the  contract  price, 
and  that,  if  any  be  removed  from  his  place  of  business, 
they  shall  be  paid  for  immediately;  that  he  shall  keep 
the  goods  insured  for  the  benefit  of  the  consignor,  shall 
pay  freight,  safely  store  and  keep  the  goods  in  good 
condition,  hold  them  free  from  all  charges  and  taxes, 
and  assume  all  risk  of  damage  or  loss  from  any  cause, 
and  that  he  shall  sell  in  a  reasonable  time,  and,  on  his. 
failure  to  do  so,  his  agency  shall  terminate  at  the  op- 
tion of  the  consignor,  and  the  unsold  goods  be  subject 
to  his  order,  free  from  all  charges.^^*  In  truth,  the 
general  rule  would  seem  to  be  that,  where  the  contract 
does  not  look  to  an  absolute  acquisition  of  title  by  the 
consignee,  agent,  or  vendee,  or  to  his  becoming  ab- 
solutely responsible  for  the  purchase  price,  the  sale  can- 
not be  regarded  as  absolute,  or  as  creating  in  his  favor 
any  interest  in  the  goods,  rendering  them  subject  to 
execution  against  him.^^®  It  seems  to  make  no  differ- 
ence that  the  vendee  has  been  intrusted  with  the  ap- 
parent ownership  of  the  property,  with  power  to  dis- 
pose of  it  in  the  ordinary  course  of  business.  Where 
E.  furnished  G.  with  a  stock  of  ready-made  clothing, 
with  which  to  go  in  business  in  G.'s  name,  the  prop- 
erty to  remain  E.'s,  and  G.  was  to  purchase  of  no  other 
person  but  K.,  was  to  do  a  cash  business  only,  and  to 
remit  the  proceeds  to  R  after  taking  out  his  salary  and 

25S  National  Bank  v.  Goodyear.  00  Ga.  711;  Walker  v.  Butterick, 
105  Mass.  237;  Milburn  M.  Co.  v.  Teak,  89  Tex.  209;  Sturm  v.  Boker, 
150  U.  S.  132. 

259  Dean  v.  Lombard.  61  111.  App.  94;  Lenz  v.  Harrison,  148  111. 
598;  Chickerinff  v.  Bastress,  130  111.  206,  17  Am.  St.  Rep.  309; 
Barnes  S.  &  L.  Co.  v.  Bloch  Bros.  T.  Co.,  38  W.  Va.  158,  45  Am.  St. 
Rep.  486. 


613  PERSONAL  PROl'EKTY  SUBJECT  TO  EXECUTION.        §  124 

expeDScs,  it  was  held  that  the  goods  were  not  subject 
to  execution  against  G.^"^  This  rule  is  also  applica- 
ble to  a  consignment  of  property  to  a  dealer,  to  be  by 
him  sold  and  the  proceeds  remitted  to  the  consignor, 
the  property  to  remain  the  consignor's  till  paid  for.'*** 
But  this  principle  in  regard  to  conditional  sales  will 
not  be  allowed  to  support  mere  devices,  resorted  to  for 
the  purpose  of  avoiding  creditors.  Hence,  where  liq- 
uors were  sold  to  a  saloonkeeper,  to  be  by  him  re- 
tailed in  the  course  of  his  business,  with  an  agreement 
that  the  portion  not  sold  should  continue  the  property 
of  the  wholesaler,  the  court  regarded  the  transaction 
as  an  absolute  sale,  and  the  agreement  as  colorable 
only.^"*  ^  If  these  decisions  can  be  harmonized  with  the 
prevailing  authorities  on  the  subject,  it  must  be  upon 
the  ground  that  the  peculiar  character  of  the  property 
and  the  circumstances  of  the  particular  case  indicated 
that  the  transaction  was  not  in  good  faith,  but  was  a 
mere  device  resorted  to  for  the  purpose  of  defrauding 
creditors. 

Where  an  apparent  absolute  liability  on  the  part  of 
the  consignee  or  vendee  for  the  property  is  created  by 
the  contract,  the  sale  must  be  deemed  unconditional 
or  absolute,  though  such  contract  declares  that  it  is 
not,  and  seeks  to  reserve  title  to  the  vendor  until  pay- 
ment of  the  purchase  price.  By  a  contract  entered 
into  between  two  persons,  it  was  agreed  that  one  of 
them  should  deliver  certain  property  to  the  other 
which  the  latter  was  to  sell  on  commission,  at  retail 
prices,  and  that  such  commission  should  be  the  differ- 

260  Robinson  v.  Chapline,  9  Iowa,  91. 

261  Cole  V.  Mann,  62  N.  Y.  1. 

26ia  Ludden  v.  Ilazen,  31  Barb.  650;  Bonestell  v.  Flack,  41  Barb. 
435,  27  TTow.  Vv.  310. 
Vol.  I. -33 


§  124       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  614 

enco  between  the  price  at  which  the  property  was  sold, 
and  the  price  at  which  it  was  billed  on  the  consign- 
ments. The  consignee  agreed  to  sell  either  for  cash 
or  to  take  notes  froiii  his  customers  on  blanks  fur- 
nished by  the  consignor,  and  in  the  latter's  name  and 
payable  to  his  order,  such  notes  to  be  guaranteed  by 
the  consignee,  and,  if  not  paid  at  maturity,  should  at 
ouce  be  paid  by  the  consignee.  If  sales  were  made  for 
cash  the  consignee  should  at  once  turn  it  over  to  the 
consignor.  The  consignee  also  agreed  to  advance  to 
the  consignor  notes  when  goods  were  received  to  the 
full  amount  of  their  value,  but  it  was  stipulated  that 
such  notes  should  not  be  in  settlement  for  the  goods, 
but  the  proceeds  of  all  goods  sold  should,  when  turned 
over  to  the  consignor,  be  credited  on  the  consignee's 
notes.  This  contract  was  held  to  amount  to  an  abso- 
lute sale  of  the  goods  received  by  the  consignee.  The 
court  distinguished  this  case  from  others  decided  by  it 
on  the  ground  that  the  contract,  in  providing  that 
Rotes  be  given  for  the  purchase  price,  when  interpreted 
in  accordance  with  legal  principles,  or  the  common  un- 
derstanding of  men,  meant  that  an  absolute  indebted- 
ness should  exist  against  the  consignees  and  in  favor 
of  the  consignors,  and  this  was  inconsistent  with  any 
other  than  an  absolute  sale.^"^  A  like  effect  was 
attributed  to  an  agreement,  purporting  to  appoint 
agents  to  sell  tobacco  at  such  prices  as  the  principal 
might,  bv  his  price  card,  from  time  to  time,  require;  the 
compensation  to  be  a  specified  sum  for  each  pound  of 
tobacco  sold,  and  that  the  agent  warranted  every  ship- 
ment made  to  him  should  be  paid  for.  He  was  required 
to  send  notes  on  the  receipt  of  each  invoice,  or  to  make 
advances  in  cash,  and  to  insure  all  goods  shipped  to 

262  Peoria  M.  Co.  v.  Lj'ons,  153  III.  427. 


515  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  124 

him,  to  protect  his  warranty.^"^  Wholesale  dealers  in 
coffee  appointed  persons,  desii^nated  as  aj^ents,  who 
agreed  to  sell,  in  the  regular  course,  the  goods  con- 
signed to  thera,  tlie  title  to  remain  in  the  consignor. 
The  goods  were  to  be  sold  in  the  names  of  the  con- 
signees at  such  prices  as  the  consignors  should  dictate. 
The  consignees  were  to  guarantee  the  sale  of  each  con- 
signment and  to  pay  therefor  within  sixty  days  from 
its  date,  and  to  assume  all  risks  as  to  the  credit  of  the 
parties  to  whom  sales  should  be  made,  to  remit  the  full 
amount  of  the  consignment,  less  commissions,  by  the 
end  of  sixty  days,  whether  it  should  have  been  sold  or 
not,  or  whether  the  proceeds  had  been  collected  or  not. 
The  consignees  insured  against  any  decline  in  prices, 
and  were,  on  their  part,  entitled  to  all  advances  in  the 
price  of  unsold  goods.  The  relations  between  these 
parties  were  held  to  be  those  of  vendors  and  purchasers, 
and  the  title  of  the  goods  received  by  the  consignees 
to  be  in  them.^^'* 

Sometimes,  instead  of  putting  the  contract  of  trans- 
action in  the  form  of  a  consignment,  with  authority  to 
sell,  or  of  a  conditional  sale,  with  a  reservation  of  title 
until  payment  of  the  purchase  price  is  made,  it  is  guised 
in  the  form  of  a  lease,  by  the  terms  of  which  the  lessee 
agrees  to  pay  a  stipulated  sum  as  rent,  and,  after  mak- 
ing all  the  payments  provided  for,  is  to  become  the 
owner  of  the  property.  Such  a  contract  is  not  a  lease, 
but  a  sale,  complete  or  conditional.^"^     Whether  it  is 

263  Mack  V.  Drninniond.  48  Neb.  397.  58  Am.  St.  Rep.  691. 

264  Aspinwall  M.  Co.  v.  .Tohnson.  97  Mich.  431;  Kellam  v.  Brown, 
112  N.  C.  4.'1:  Brnunn  v.  Koally.  146  Pa.  St.  519.  28  Am.  St.  Rep. 
811:  ArlMickle  v.  Kirkpatriok.  98  Tonn.  221.  60  Am.  St.  Rep.  fCA. 

265  Parke  etc.  Co.  v.  White  River  Co.,  101  Cal.  37:  ITine  v. 
Roberts,  48  Conn.  267.  40  .\m.  Rep.  170;  T>ooinis  v.  Braqrir.  ."0  Conn. 
228,  47  Am.  Rep.  638;  Cromptou  v.  Beech,  62  Conn.  2.3,  36  Am.  St. 


§  124        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  51(7 

to  be  deemed  an  absolute  sale,  and  the  money  stipu- 
lated to  be  paid  as  reut  an  unconditional  indebtedness, 
so  that  the  property  is  subject  to  execution  against  the 
person  designated  as  the  lessee,  is  to  be  determined  by 
the  test  hereafter  stated. 

Where  the  memorandum  of  a  sale  was  as  follows: 
"Brighton,  July  7,  1873,  John  McDonald  bought  of  D. 
McKinney  and  Son  one  roan  mare  for  |300.  Paid  |50. 
The  mare  to  be  paid  for  August  1st;  if  not,  to  be  re- 
turned to  D.  McKinney  and  Son" — it  was  held  that  this 
was  not  a  conditional  sale,  and  that  the  title  therefore 
vested  in  the  purchaser  on  the  delivery  of  the  property 
to  him.^*'"  A  few  cases,  while  conceding  that,  as  be- 
tween the  original  parties,  a  conditional  sale  does  not 
transfer  the  title  until  compliance  with  the  condition, 
hold  that  a  purchaser  from  the  vendee  in  possession,  in 
good  faith  and  for  value,  acquires  a  perfect  title  freed 
from  the  condition.^"''     These  cases  have,  except  in  the 

Rep.  323;  Ross  v.  McDuffie.  91  Ga.  120;  Latham  v.  Snmner,  89  111. 
233.  31  Am.  Rep.  79;  Greer  v.  Church.  13  Bush.  430;  Grovss  v.  Jor- 
dan, 83  Me.  380;  Ham  v.  Cerniglia,  73  Miss.  290;  Singer  M.  Co.  v. 
Bullard,  62  N.  H.  129;  Gerrish  v.  Clarlc,  64  N.  H.  492;  Clark  v.  Hill, 
117  N.  C.  11,  53  Am.  St.  Rop.  574;  Dearborn  v.  Raysor,  132  Pa.  St. 
231;  Farquhnr  v.  McAlevy.  142  Pa.  St.  233,  24  Am.  St.  Rep.  497; 
Singer  ]\I.  Co.  v.  Cole,  4  Lea,  430,  40  Am.  Rep.  20;  Cowan  v. 
Singer  M.  Co.,  92  Tenn.  376;  Whitfomb  v.  Woodworth.  54  Vt.  544; 
CoUender  Co.  v.  IMarshall.  57  Vt.  232;  Quinn  v.  Parlje  etc.  Co.,  5 
Wash.  276;  Baldwin  v.  Van  Wagner,  33  W.  Va.  293;  Kimball  v. 
Mellon,  80  Wis.  1.33;  Sanders  v.  WHlson,  8  Mackey,  555;  Gerow  v. 
Costello.  11  Colo.  560.  7  Am.  St.  Rep.  2(;0. 

2G0  McKinney  v.  Rradlee,  117  Mass.  ,321. 

267  Vaughn  v.  Hopson,  10  Bush.  337;  Jones  v.  Clark,  20  Colo.  353; 
George  v.  Tufts,  5  Colo.  192;  Murch  v.  Wright,  46  111.  487,  95  Am. 
Dec.  4.55;  Lucas  v.  Campbell.  88  111.  447;  Van  Duzor  v.  Allen.  90 
III.  499;  W'ait  v.  Green,  36  N.  Y.  556;  Smith  v.  Lynes,  5  N.  Y.  41. 
But  these,  and  earlier  New  York  cases  in  harmony  with  them,  are 
either  explained  away,  or  overruh-d  by  R.-illard  v.  Burgett,  40  N.  Y. 
314;  Austin  v.  Dye.  46  N.  Y.  .500;  :Maynard  v.  Anderson.  54  N.  Y. 
641.     In  the  opinion  of  the  court  in  Vaughn  v.  Hopson,  10  Bush, 


617  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  124 

'  states  of  Colorado  aud  Keutucky,  been  overruled. 
Transactions  have  very  frequent!}'  been  put  in  the  form 
of  conditional  sales,  when  the  real  relations  of  the  par- 
ties were  those  of  mortgagors  and  mortgagees.  The 
advantages  of  chattel  mortgages  have  thus  been  se- 
cured, even  Avhcn  security  of  that  character  was  for- 
bidden with  respect  to  the  class  of  property  in  contro- 
versy, riecently  the  courts  have  been  inclined  to  scru- 
tinize these  transactions  more  closely,  and  to  refuse  to 
be  bound  by  the  name  and  form  given  them  by  the  par- 
ties, if  satisfied  from  the  whole  transaction  that  it  was 
not  a  conditional  sale.  AVith  respect  to  the  construc- 
tion of  contracts  claimed  to  be  conditional  sales,  the 
supreme  court  of  the  United  States  has  very  wisely 
said:  "The  answer  to  this  question  is  not  to  be  found  in 
any  name  which  the  parties  may  have  given  to  the  in- 
strument, and  not  alone  in  any  particular  provision  it 
contains,  disconnected  from  all  others,  but  in  the  ruling 
intention  of  the  parties,  gathered  from  all  the  language 
they  have  used.  It  is  the  legal  effect  of  the  whole 
which  is  to  be  sought.  The  form  of  the  instrument  is 
of  little  account."  ^****  The  contract  here  in  question 
was  between  two  corporations,  one  of  which  was  a 
builder  of  cars,  and  the  other  the  owner  and  operator 

337,  it  is  said  that  "numerous  authorities  niiplit  be  cited  sustaining 
what  we  conceive  to  be  the  true  doctrine  on  this  subject,  holding 
that  where  there  is  a  conditional  sale  of  chattels  with  an  actual  de- 
livery of  possession  to  the  vendee,  a  purcliaser  from  the  latter,  in 
good  faith,  and  without  notice  of  the  condition,  acquires  a  perfect 
title."  Whence  tliese  authorities  minht  be  cited  we  cannot  imasrine, 
and  nothing  loss  tlian  imagination  can  supply  them.  There  was  not, 
when  that  decision  was  rendered, a  single  uuoverrulod  case  in  har- 
mony with  it,  except  in  the  states  of  Illinois  and  Pennsylvania 
Murch  V.  Wright.  46  111.  4S7,  95  Am.  Dec.  455;  Schweitzer  v.  Tracy, 
70  111.  345;  Stadtfield  v.  Huntsman,  92  Pa.  St.  53,  37  Am.  Rep.  661. 
26sHeryford  v.  Davis,  102  U.  S.  243. 


§  124       PERSONAL  PRO.rERTY  SUHJECT  TO  EXECUTION.  518 

of    a  railway.     It  recited    that    the  former  had  con- 
structed certain  cars,  to  be  used  on  the  railway  of  the 
latter  for  hire,  and  that  the  former  loaned  the  latter  the 
said  cars  for  hire  on  such  railway  for  the  period  of  four 
months,  and  not  elsewhere;  that  the  railway  company 
had  executed  to  the  manufacturing  company  three  cer- 
tain notes,  which  were  to  be  collected  at  maturity,  and 
their  proceeds  held  as  security  for  the  return  of  the  cars 
when  demanded;   that   the  railway  company  had  the 
privilege  of  purchasing  the  cars  at  any  time  on  paying  a 
price  fixed  by  the  contract;  that  until  such  payment  it 
should  have  no  right,  title,  or  interest  in  the  cars,  ex- 
cept to  use  them,  and  no  power  to  dispose  of,  mortgage, 
or  pledge  them;  that  the  cars  were  to  be  redelivered 
to  the  manufacturing  company  when  demanded,  in  de- 
fault of  the  payment  of  said  fixed  sum,  with  interest; 
that,  on  default  in  the  payment  of  any  of  said  notes,  the 
manufacturing  company  might  take  possession  of  all 
said  cars,  and  retain  all  payments  made  on  any  of  such 
notes,  and  would  sell  said  cars  and  return  to  the  rail- 
way company  any  surplus  remaining  out  of  the  net  pro- 
ceeds of  the  sale,  over  and  above  the  amount  due  on 
the  unpaid  notes;  and,  finally,  that  on  payment  of  all 
of  the  notes,  the  manufacturing  company  would  convey 
the  cars  to  the  railway  company.     This  contract  was 
construed  not  to  be  a  conditional  sale,  but  an  attempt 
to  obtain  or  reserve  a  lien  in  a  form  forbidden  by  the 
laws  of  the  state;  and  the  property  was  held  to  be  sub- 
ject to  execution  against  the  railway  company.     The 
grounds  of  this  decision  were,  that  no  price  for  the  hire 
was  mentioned  or  alluded  to;  that  the  manufacturing 
company  took  notes  for  the  full  price  of  the  cars,  and 
exacted  security  for  their  payment,  and  would  thereby 


519  PKRSOXAL  PilOri^iii'i   .-^UBJEL'T  TO  EXELUTIOX.        §  1-J4 

realize  the  price  of  the  cars  before  the  four  months  had 
e]ai)st'cl;  no  part  of  the  money  was  to  be  returned  to 
the  railway  comx^any  in  any  contingency,  and,  in  the 
event  of  the  cars  beinj^  taken  from  the  railway  company 
and  sold,  it  was  entitled  to  such  portion  of  the  proceeds 
of  the  sale  as  remained  after  paying  the  demands  of  the 
manufacturing-  company.  ''In  view  of  these  provi- 
sions," said  the  court,  ''we  can  come  to  no  other  con- 
clusion than  tljat  it  was  the  intention  of  the  parties, 
manifested  by  the  agreement,  the  ownership  of  the 
cars  should  pass  at  once  to  the  railroad  company  in  con- 
sideration of  their  becoming  debtors  for  the  price. 
Notwithstanding  the  efforts  to  cover  up  the  real  nature 
of  the  contract,  its  substance  was  an  hypothecation 
of  the  cars  to  secure  a  debt  due  to  the  vendors  for  the 
price  of  a  sale.  The  railroad  company  was  not  ac- 
corded an  option  to  buy  or  not.  They  were  bound  to 
pay  the  price,  either  by  paying  these  notes  or  surren- 
dering the  property  to  be  sold,  in  order  to  make  pay- 
ment. This  was  in  no  sense  a  conditional  sale.  This 
giving  the  property  as  a  security  for  the  payment  of  a 
debt  is  the  very  essence  of  a  mortgage,  which  has  no 
existence  in  a  case  of  conditional  sale." 

The  case  of  Palmer  &  Key  v.  Howard,-^^  was  very 
similar  in  its  features.  The  plaintilTs  delivered  to  one 
St.  Clair  an  agreement  reciting  that  he  had  borrowed 
and  received  of  them  certain  articles  in  good  order; 
that  if  the  price  named  should  be  paid,  the  property  to 
belong  to  the  bornnver,  otherwise  to  remain  the  prop- 
erty of  Talmer  •&  Rey;  that  the  borrower  would  keep 
the  property  in  good  ord^r;  pay  the  price  as  per  memo- 
randum; keep  the  property  insured  for  the  benefit  of 

209  72  Cal.  293,  1  Am.  St.  Rep.  60,  and  note. 


§  124        PERSONAL  PHOPERTY  SUBJECT  TO  EXECUTION.  520 

Palmer  &  Rey;  that  it  should  not  be  removed  from 
certain  designated  premises;  and  that,  if  the  borrower 
failed  to  meet  any  of  the  payments,  Palmer  &  Key 
might  take  the  property,  sell  it,  and  render  the  bor- 
rower all  surplus  after  paying  "the  price  agreed  upon 
and  the  expenses  of  removal  and  sale."  The  court  was 
of  opinion  that  it  was  clear  from  the  whole  agreement 
that  the  plaintiffs  had  sold  the  property  to  St.  Clair, 
who,  on  his  part,  had  made  an  absolute  engagement  to 
pay  therefor,  and  had  acquired  a  right  to  such  jiart  of 
the  net  proceeds  of  the  sale  as  might  remain  after  pay- 
ing any  installments  in  the  payment  of  which  he  had 
made  default;  and  that  the  manifest  scope  and  pur- 
pose of  the  contract  could  not  be  defeated  by  the  state- 
ment therein  made  that  the  property  "remains  the 
property  of  Palmer  &  liey."  ^^^ 

As  it  is  still  conceded,  where  statutes  have  not  in- 
terposed to  change  the  rule  of  the  common  law,  that 
conditional  sales  are  valid,  and  that  a  vendor  may,  by 
his  contract  of  sale,  impose  any  legal  condition  which 
to  him  shall  seem  proper  or  advisable,  and  reserve 
title  in  himself  until  such  condition  has  been  per- 
formed,"^* it  is  of  the  utmost  importance  to  be  able  to 
distinguish  a  conditional  from  an  absolute  sale,  and 
the  contract  evidencing  it  from  a  chattel    mortgage. 

270  other  cases  holding  that  the  real  nature  of  the  transaction 
must  be  considered,  and  cannot  be  destroyed  by  the  name  given  it 
by  the  parties,  are  Hervey  v.  R.  I.  L.  WorlvS,  93  U.  S.  G(>4;  Murch 
V.  Wright,  46  111.  488,  95  Am.  Dec.  455;  Hart  v.  B.  &  S.  Mfg.  Co., 
7  Fed.  Rep.  543;  Greer  v.  Church,  13  Bush,  430;  Aultman  v.  Sillia, 
85  Wis.  359. 

271  Gerow  v.  CostelJo,  11  Colo.  560,  7  Am.  St.  Rep.  260;  McComb 
V.  Donald's  Ad.,  82  Va.  903;  Prentiss  T.  etc.  Co.  v.  Schirmer.  130 
N.  Y.  305,  32  Am.  St.  Rep.  737;  Vermont  M.  Co.  v.  Brow,  109  Cal. 
236;  Holt  M.  Co.  v.  Ewing,  109  Cal.  353;  Rodgers  v.  Bachman,  109 
Cal.  552. 


521  TERSONAL  J'llOPERTY  SUBJIX'T  TO  EXECUTION.        §  124 

The  tost  seoms  to  be  this:  if,  at  the  inception  of  the 
contract,  or  at  any  later  date,  one  of  the  i>arties  has  an 
absolute  right  to  the  whole  purchase  price,  or  to  the 
balance  thereof  remaining  unpaid,  and  the  other  is  un- 
der an  absolute  obligation  to  pay  it,  then  the  sale  is 
absolute,  and  not  conditional,  and  any  attempt  to  se- 
cure the  balance  due  on  the  purchase  price  by  a  con- 
tract purporting  to  reserve  the  title  for  that  purpose  is, 
in  legal  contemplation,  a  chattel  iiutrtgage,  and  not 
valid  unless  executed,  acknowledged,  and  recorded  in 
the  manner  required  by  law  for  instruments  of  that 
character.  Hence,  if  a  promissory  note,  taken  by  the 
vendor  for  the  purchase  price,  is  secured  by  a  mort- 
gage of  property-  other  than  that  sold,  the  sale  cannot 
be  deemed  conditional.^'^^  "\There  a  sale  is  conditional, 
notes  or  other  evidence  of  indebtedness  being  given  for 
the  purchase  price,  the  vendor  may,  on  default  of  pay- 
ment, pursue  either  of  two  remedies.  He  may  treat 
the  property  as  still  his,  and  sue  for  and  recover  posses- 
sion of  it,  or,  treating  the  sale  as  absolute  and  uncon- 
ditional, he  may  sue  and  obtain  judgment  for  the  bal- 
ance of  the  purchase  price.  lie  cannot  do  both.  If 
the  vendee  has  died,  the  presentation  of  a  claim 
against  his  estate,  if  it  is  allowed,  is  equivalent  to  ob- 
taining a  judgment  thereon.  The  sale  must,  therefore, 
be  deemed  absolute,  and  the  vendor  as  having  parted 
with  the  title  to  the  property.^'*  "The  optional  pay- 
ment of  the  purchase  price  is  as  essential  to  constitute 
a  transaction  a  conditional  sale  as  the  conditional  pass- 
ing of  the  title;  and  a  transaction  that  in  express  terms 
imposes  an  unconditional  liability  upon  the  vendee  to 
pay  the  purchase  price  for  the  property  delivered,  how- 

272  Silver  Bow  M.  Co.  v.  I.^iwry.  6  Mont.  288. 

273  Holt  M.  Co.  V.  Ewiuj,',  109  Cal.  3.'3. 


§  1-25   PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     522 

ever  characterized  by  the  parties,  is  essentially  and  in 
legal  effect  an  absolute,  and  not  a  conditional,  sale. 
'If,  by  the  terms  of  an  agreement,  the  purchaser  be- 
comes liable  unconditionally  for  the  purchase  price,  al- 
though by  the  agreement  he  may  never  get  the  title  and 
ownership  of  the  property,  then  the  agreement  is  an 
evasion  of  the  registration  statute,  as  its  purpose  is 
simply  to  retain  a  secret  lien.'  "  ^'^■* 

§  125.  Interests  of  Cotenants  and  Partners.— The  in- 
terests of  partners  and  cotenants  may  be  considered 
with  reference  (1)  to  writs  of  execution  against  all  the- 
meinbers  of  a  partnership  or  cotenancy,  and  (2)  to  writs 
of  execution  against  one  member  only.  Writs  of  exe- 
cution against  all  the  members  of  a  partnership  may 
be  based  (1)  upon  a  partnership  liability,  or  (2)  upon  a 
liability  against  all  the  members  of  the  firm,  but  not 
connected  with,  nor  arising  out  of,  its  business,  and, 
therefore,  not  constituting  a  partnership  obligation. 
Upon  an  execution  against  a  partnership,  there  can  be 
no  doubt  of  the  right  to  levy  upon  any  of  its  assets  sub- 
ject to  execution  in  the  same  manner  and  with  the 
same  effect  as  in  other  cases.^'^^  So,  when  there  are 
several  defendants  in  the  execution,  a  levy  may  be  made 
upon  property  held  by  them  as  cotenants  in  the  same 
manner  as  upon  property  held  in  severalty. 

If  a  judgment  is  recovered  against  all  the  members 
of  a  partnership,  but  not  upon  a  firm  liability,  and  exe- 
cution issues  thereon,  it  may  undoubtedly  be  levied 
upon  the  firm  property.  The  only  question  of  especial 
interest  which  may  arise  out  of  such  a  levy  is  this:  May 

274  Andrews  v.  Colorado  R.  P,..  20  Colo.  313,  40  Am.  St.  Rop.  291. 

275  xoto  to  Smith  v.  Smith,  43  Am.  St.  Rep.  3G4;  Hall  v.  Richard- 
son, GO  N.  II.  205. 


523  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  125 

it  be  enforced  both  at  law  and  in  equity  w  hen  the  firm 
is  shown  to  be  insolvent  and  its  assets  are  therefore  re- 
quired to  satisfy  partnership  oblij^ations?  The  better 
opinion  ui>on  this  subject  is,  that  the  cicdilors  of  tiie 
piU'tnership  have  no  right  to  insist  upon  the  application 
of  its  projx'rty  to  the  satisfaction  of  partnersliip,  rather 
than  to  individual,  obligations,  except  when  some  mem- 
ber of  the  linii  retains  this  right,  and  that,  when  there 
is  a  joint  debt  against  all  the  members,  though  not 
founded  upon  a  partnership  obligation,  neither  of  them 
has  any  right  to  insist  that  it  shall  not  be  satisfied  out 
of  the  partnership  assets,  and  hence  none  of  the  part- 
nership creditors  can  complain  if  such  assets  are  volun- 
tarily applied  by  the  partners  to  the  payment  of  such 
debts  or  are  taken  by  an  officer  under  a  writ  against 
them  for  the  purpose  of  making  such  ai)plication;  and, 
finally,  that  a  levy  upon  partnership  assets  to  satisfy 
a  judgment  against  all  the  members,  though  not  for  a 
partnership  liability,  is  valid,  and  cannot  be  controlled 
or  set  aside  in  equity  for  the  purpose  of  compelling  the 
property  levied  upon  to  be  applied  to  the  extinction  of 
partnership  obligations.^'^® 

Where  a  writ  is  upon  a  partnership  debt,  there  is  a 
right  to  satisfy  it  out  of  partnership  assets,  to  the  exclu- 
sion of  all  claims  of  the  creditors  of  the  partners  as 
individuals,  and  hence  there  must  be  a  right  to  take 
the  partnership  assets,  though  they  have  already  been 
levied  upon  under  writs  against  some  of  the  partners 
as  individuals,  but  not  based  upon  partnership  obliga- 
tions, for,  whether  the  interest  of    a  partner  in    the 

278  Menagh  v.  Whitwell.  52  N.  Y.  146.  11  Am.  Rep.  G83;  Saun- 
ders V.  Reilly.  105  N,  Y.  12,  59  Am.  Rep.  472:  Stanton  v.  Westover, 
101  N.  Y.  2(m;  Davis  v.  Delaware  etc.  Co.,  109  X.  Y.  47,  4  Am.  St. 
Rep.  418. 


§  125       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  524 

partnership  obligations  is  subject  to  levy  under  execu- 
tion or  not,  and  whatever  be  the  mode  of  making  the 
levy,  the  property  still  remains  answerable  for  partner- 
ship obligations,  and  a  writ  of  attachment  or  execution 
for  a  partnership  debt  takes  precedence  over  any  previ- 
ous levies  or  sales  under  writs  against  one  member  of 
the  partnership  only,  and  a  purchaser  under  the  former 
writ  acquires  title  paramount  to  that  of  a  purchaser 
under  the  latter  writ,  irrespective  of  the  date  of  the 
respective  levies  and  sales.^''  In  some  of  the  states  it 
has  been  held  that  any  act  of  the  members  of  an  insol- 
vent firm  tending  to  impair  the  right  of  the  firm  credit- 
ors to  seek  satisfaction  out  of  its  assets  is  fraudulent 
against  such  creditors,  and  therefore  void.^''* 

Though  a  writ  is  against  one  of  several  partners  or 
cotenants,  there  can  be  no  doubt  that  his  interest  in 
real'or  personal  property,  unless  held  by  a  tenancy  by 
the  entireties,  is  subject  to  execution  the  same  as  a  like 
estate  in  severalty.  Some  difficulty  may  be  experi- 
enced in  determining  how  the  interest  is  to  be  seized 
and  sold.  In  the  case  of  cotenants,-''^  it  is  clear  that 
the  officer's  levy  should,  except  in  the  case  of  severable 
chattels,  purport  to  be  upon  the  defendant's  moiety 
only.  The  officer  may,  however,  take  exclusive  posses- 
sion of  the  chattel,  retain  possession  until  the  sale,  and 

277  Conroy  v.  Woods,  13  Cal.  13G,  73  Am.  Dee.  605;  Switzer  v. 
Smith,  35  Iowa,  2G9;  Cox  v.  Russell,  44  Iowa,  556;  Pierce  v.  Jack- 
son, 6  Mass.  242;  Williams  v.  Gage,  49  Miss.  777;  First  N.  B.  v. 
Brenneisen,  97  Mo.  145;  Roop  v.  Herron,  15  Neb.  73;  Watt  v.  John- 
son, 7  Jones,  190;  Coover's  Appeal,  29  Pa.  St.  9,  70  Am.  Dec.  149; 
Wasliburn  v.  Bank  of  Bellows  Falls,  19  Vt.  278;  Powers  v.  Large, 
69  Wis.  621.  2  Am.  St.  Rep.  767. 

278  Franklin  S.  R.  Co.  v,  Henderson,  86  Md.  452,  63  Am.  St.  Rep. 

525. 

279NewtoiJ  V.  Howe,  29  Wis.  531,  9  Am.  Rep.  616;  Freeman  on 
Cotenancy  and  Partition,  sec.  252. 


625  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  125 

deliver  it  to  the  purehascT,-*""  except  in  thoBe  states 
which  have  by  statute  forbidden  an  officer  from  taking 
a  chattel  from  the  possession  of  a  part  owner  without 
his  consent,  and  have,  in  effect,  authorized  him  to  make 
a  levy  without  taking  such  possession.^**^  It  is  uni- 
versally conceded  that,  except  where  some  statutory 
provision  to  the  contrary  has  been  enacted,  the  interest 
of  a  partner  is  liable  to  execution  for  his  individual 
debts. ^*^^  In  New  York,  the  interest  of  a  special  or 
limited  partner  is  a  mere  chose  in  action,  and  is  not  sub- 
ject  to  execution. ^'^•'  In  Georgia,  the  interest  of  a  co- 
partner may,  by  statute,  be  reached   only  by  garnish- 

280  Freeman  on  Cotenancy  and  Partition,  sec.  214;  "Waldnian  v. 
Broder,  10  Cal.  378;  Treon  v.  Enierick,  6  Ohio,  391;  Thomas  v.  Tur- 
vey,  1  Har.  &  G.  435;  McElderry  v.  Flanna.iran.  1  Har.  &  G.  308; 
Walsh  V.  Adams.  3  Denio.  125;  Bernal  v.  Hovious,  17  Cal.  541,  79 
Am.  Dec.  147;  Whitney  v.  Ladd.  10  Vt.  105;  Kilby  v.  Ha.ssin.  3  .T.  J. 
Marsh.  215:  Darant  v.  Ciibbage.  2  Hill  (S.  C),  311:  Caldwell  v. 
Anger,  4  :Minn.  217;  77  Am.  Dec.  515;  Waddell  v.  Cook.  2  Hill.  48, 
37  Am.  Dec.  372;  Reed  v.  Shepardson.  2  Vt.  120, 19  Am.  Dec.  697;  Phil- 
lips V.  Cook,  24  Wend.  389:  Welch  v.  Clark,  12  Vt.  686,  36  Am.  Dec. 
368;  Reed  v.  Howard,  2  Met.  40;  Islay  v.  Stewart,  4  Dev.  &  B.  100; 
Hayden  v.  Binney,  7  Gray,  416;  Veach  v.  Adams,  51  Cal.  611;  Heald 
V.  Sargeant.  15  Vt.  500.  40  Am.  Dec.  694;  Lawrence  v.  Burnham,  4 
Neb.  361;  97  Am.  Dec.  540;  Burton  v.  Kennedy,  63  Vt.  350.  25  Am.  St. 
Rep.  769. 

281  Vicory  v.  Strausbaugh,  78  Ky.  425;  Blumenfield  v.  Seward,  71 
Miss.  342. 

282  Parsons  on  Partnership,  352;  Knox  v.  Summers.  4  Yeates,  477; 
Watson  V.  Gabby,  18  B.  Mon.  658;  Haskins  v.  Everett,  4  Sneed,  531; 
Wilson  V.  Conine,  2  Johns.  280;  Walsh  v.  Adams.  3  Denio.  125; 
Jones  V.  Strattou,  32  111.  202;  Nixon  v.  Nash.  12  Ohio  St.  647.  80  Am. 
Dec.  390;  Kuerr  v.  Hoffman.  05  Pa.  St.  120:  Scrugham  v.  Carter,  12 
Wend.  131;  Shaw  v.  McDonald,  21  Ga.  395;  Chapman  v.  Koops,  3 
Bos.  &  P.  289;  Holmes  v.  Mentze,  4  Ad.  &  E.  131;  Douglas  v.  Wins- 
low,  20  Me.  90;  Dow  v.  Say  ward,  12  N.  H.  271;  Moody  v.  Payne,  2 
Johns.  Ch.  548;  Burgess  v.  Atkins,  5  Blackf.  337;  Jones  v.  Thomp- 
son, 12  Cal.  191. 

283  Harris  v.  Murray,  28  N.  Y.  574,  SG  Am.  Dec.  268. 


§  125       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  526 

ment.-**'*  In  Iowa,  the  manner  of  levying  upon  the  in- 
terest of  a  partner  has  also  been  provided  for  by  stat- 
ute.-**^ Confessedly,  a  sale  under  an  execution  against 
one  partner  does  not  divest  the  title  of  the  partnership 
in  the  property.  It  transfers  only  such  interest  as  may 
remain  in  the  judgment  debtor  upon  the  settlement  and 
adjustment  of  the  affairs  of  the  partnership.  As  the 
rights  of  the  partnership  are  paramount,  it  would  seem 
that  they  must  preclude  the  officer  serving  the  writ 
from  taking  the  property  into  his  exclusive  possession, 
even  for  the  purposes  of  levy  and  sale;  and  this  view 
has  been  maintained  with  great  force  in  several  deci- 
sions pronounced  in  the  supreme  court  of  New  Hamp- 
shire.^'^^  It  also  meets  with  favor  in  Pennsylvania. 
The  courts  of  that  state  have  declared  that  the  levy  of 
separate  writs  against  the  members  of  a  firm  for  their 
individual  debts  upon  the  goods  of  the  firm  is  unauthor- 
ized, creates  no  lien  on  those  goods,  and  is  as  nugatory 
as  if  levied  upon  the  property  of  a  stranger.^*'^  So,  in 
Massachusetts,  it  is  settled  that  the  assets  of  a  part- 
nership cannot  be  levied  upon  under  a  writ  against  one 
partner  only.^****  The  authorities  elsewhere  are  almost 
unanimous  in  affirming  that  the  officer  may,  in  levying 
on  the  interest  of  a  partner,  assume  exclusive  posses- 
sion of  the  chattels  of  the  firm,  and  retain  it  until  the 

284  Willis  V.  Hendorson,  43  Ga.  32.5;  Anderson  v.  Chenney,  51  Ga. 
372. 
2«5  Richards  v.  Haines,  30  Iowa,  574;  Code  of  Iowa,  sec.  3977. 

256  Gibson  v.  Stevens,  7  N.  H.  352;  Garvin  v.  Paul,  47  N.  H.  158; 
Morrison  v.  Blodsett,  8  N.  IT.  238,  29  Am.  Dec.  G53,  and  note;  Tread- 
well  V.  Brown.  43  N.  H.  290. 

257  Kichard  v.  Allen,  117  Pa.  St.  226,  2  Am.  St.  Rep.  G52;  White 
V.  Rech,  171  Pa.  St.  82. 

288  Russell  V.  Cole,  167  Mass.  6,  57  Am.  St.  Rep.  432,  and  note; 
Sanborn  v.  Royce,  132  Mass.  594. 


527  PERSONAL  PKOPERTY  SUBJECT  TO  EXECUTION.        §  125 

sale.-''"  It  is  also  uudoubtcd  that  the  interest  subject 
to  execution  is,  at  least  iu  equity,  in  no  respect  greater 
than  that  held  by  the  defendant;  that  it  is  subject  to 
the  paramount  claims  against  the  partnership,  and  is, 
in  fact,  nothing  beyond  the  right  to  demand  an  account- 
ing, and  to  share  in  the  surplus  that  may  remain  after 
all  the  partnership  obligations  have  been  discharged.-"" 
Whether  the  levy  can  be  upon  any  specific  part  of 
the  goods  of  the  firm,  and  whether  by  the  sale  the  pur- 
chaser acquires  any  interest  in  the  i)roperty  sold,  be- 
yond the  right  to  call  for  an  accounting,  are  questions 
upon  which  the  authorities  are  not  agreed.  The  earlier 
cases  were  determined  when  partnerships  were  re- 
garded as  mere  cotenancies.     Hence  those  cases,  and 

2S9  Clark  V.  Gushing.  52  Cal.  617;  Saunders  v.  Bartlett,  12  Heisk. 
*J17;  Branch  v.  Wiseman,  51  Ind.  3;  De  Forest  v.  Miller,  42  Tex.  M; 
Atkins  V.  Saxton,  77  N.  Y.  195;  Hacker  v.  Johnson,  60  Me.  21;  Par- 
ker V.  Wright,  G6  Me.  392;  United  States  v.  Williams.  4  McLean. 
230;  Rachurst  v.  Clinkard,  1  Show.  173;  Mayhew  v.  Herriek,  7  Com. 
li.  229;  Newhall  v.  Buckingham,  14  111.  405;  Parker  v.  IMstor,  3  Bos. 
&  P.  28S;  Pope  v.  llaman.  Comb.  217;  Heydon  v.  Heydon,  Salk. 
:592;  White  v.  .Tones.  38  111.  159;  Johnson  v.  Evans,  7  Man.  &  G. 
240;  Davis  v.  White.  1  lloust.  228;  Andrews  v.  Keith,  34  Ala.  722; 
Smith  v.  Orser,  42  N.  Y.  132;  AVilliams  v.  Lewis,  115  Ind.  45,  7  Am. 
St.  Rep.  403;  Ilershfield  v.  Clafiin.  25  Kan.  1G6,  37  Am.  Rep.  237;  Peo- 
ple's Bank  v.  Shyrock,  48  Md.  427,  30  Am.  Rep.  476;  Nixon  v.  Nash, 
12  Ohio  St.  647.  80  Am.  Dec.  390;  Graden  v.  Turner,  15  Wash.  136; 
Trafford  v.  Iiuhl);ird.  15  R.  I.  326. 

290  Eighth  N.  B.  v.  Fitch.  49  N.  Y.  539;  Clagett  v.  Kilbourne.  1 
Black,  346;  Lyndon  v.  Gorham,  1  Gall.  367;  Chandler  v.  Lincoln.  52 
111.  74;  Deal  v.  Bogue,  20  Pa.  St.  228,  57  Am.  Dec.  702;  Bowman  v, 
O'Reilly,  31  Miss.  261;  Atwood  v.  Impson.  20  N.  J.  Eq.  1.50;  Dutton 
V.  Morrison,  17  Yes.  193;  1  Rose.  213;  Garbett  v.  Veale,  5  Q.  B.  408: 
8  Jur.  335;  Dru.  &  M.  458;  Robinson  v.  Tevis.  38  Cal.  Oil;  Skipp  v. 
Ilarwooil.  2  Swans.  ,580;  In  matter  of  Wait,  1  Jacob  &  W.  (;()5;  Filloy 
V.  Phelps.  IS  Conn.  294;  Taylor  v.  Fields,  4  Ves.  396;  Hanker  v. 
G.irratt.  1  Ves.  Jr.  239;  Doe  v.  Hunt.  11  Ired.  42;  Marston  v.  Dew- 
berry, 21  La.  Ann.  518;  Knox  v.  Shepler,  2  Hill  (S.  C.)  595;  Jarvis 
V.  Hyer,  4  Dev.  367;  Barber  v.  Bank,  9  Conn.  407;  United  States 
V.  Hack.  8  Pet.  271;  Pierce  v.  Jackson,  6  Mass.  242. 


§  125       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  528. 

such  modern  cases  as  have  been  controlled  by  them, 
place  sales  under  execution  for  the  separate  debt  of  a 
copartner  very  much  on  the  same  ground  as  a  sale  for 
the  separate  debt  of  a  cotenant.  Therefore,  according 
to  this  view,  an  officer  can,  under  such  an  execution, 
levy  upon  a  part  a,s  well  as  upon  the  whole  of  the  chat- 
tels of  a  firm;  ^**  and  can,  by  his  sale,  transfer  a  moiety 
of  the  legal  title,  together  with  the  right  to  take  and 
hold  possession  against  the  other  partners,^^^  leaving 
them  without  any  other  means  of  enforcing  the  rights 
of  the  partnership  than  by  proceedings  in  chancery. 
But  the  courts  have  gradually  progressed  toward  a 
realization  of  the  true  nature  of  partnerships,  and  have 
therefore  come  to  understand  that  they  are  materially 
different  from  cotenancies.  A  copartner  has  no  right 
to  any  specific  chattel  belonging  to  the  firm,  nor  has 
he  any  right,  as  against  the  firm,  to  take  or  hold  exclu- 
sive possession  of  any  such  chattel.  The  real  owner- 
ship of  all  the  chattels  is  vested  in  the  firm;  the  interest 
of  each  partner  is  merely  a  right  to  share  in  the  pro- 
ceeds of  those  chattels  after  all  the  partnership  obliga- 
tions have  been  satisfied.  Upon  what  principle  can  the 
purchaser  at  an  execution  sale  be  sustained  in  the  exer- 
cise of  rights  to  which  the  defendant  was  never  enti- 
tled? Clearly,  upon  no  principle  whatever.  The  pre- 
cedents made  at  an  early  day,  when  the  law  of  partner- 
ship was  imperfectly  understood,  are  losing  their  force 
as  authorities.     Their  place  is  being  supplied  by  a  line 

291  Wiles  V.  Maddox,  20  Mo.  77;  Fogg  v.  La  wry,  G8  Me.  78,  28  Am. 
Rep.  19;  Hershfield  v.  Claflin,  25  Kan.  160,  37  Am.  Rep.  237;  Randall 
V.  .Johnson,  13  R.  I.  338;  .Tones  v.  Richardson,  99  Tenn.  614;  Graden 
V.  Turner,  15  Wash.  130;  Snell  v.  Crowe,  3  Utah,  2(>. 

292  Walsh  V.  Adams.  3  Denio,  125;  Berry  v.  Kelly,  4  Robt.  100; 
Phillips  V.  Cook,  24  Wend.  3S9;  Haskins  v.  Everett,  4  Sneed,  531. 


529     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.   §  li'o 

of  decisions,  destined  to  grow  in  favor  and  number,  de- 
claring that  the  creditor  of  an  individual  partner  can- 
not sell  any  specific  article,  but  only  the  partner's  inter- 
est in  the  whole  of  the  partnership  assets,'"'*  and  that 

«»8  Thomas  v.  Lusk,  13  La.  Ann.  277;  Vandike  v.  Rosskam,  67  Pa. 
St  330;  Atwood  v.  Meredith,  37  Miss.  63o;  Whigham's  Appeal,  03 
Pa.  St.  194;  Pittman  v.  Robicheau,  14  La.  Ann.  lOS;  Siirlne  v. 
Brlggs.  31  Mich.  443;  Haynos  v.  Knowles,  36  Mich.  407;  Williams 
T.  Lewis,  115  Ind.  43,  7  Am.  St.  Rep.  405;  Gerard  v.  Bates,  124  III. 
150,  7  Am.  St.  Rep-  350;  Sanborn  v.  Royce,  132  Mass.  594;  Russell 
V.  Cole.  167  Mass.  6,  57  Am.  St.  Rep.  432;  Levy  v.  Cowan,  27  La. 
Ann.  556;  Doner  v.  Stauffer,  1  Pen.  &  W.  198,  21  Am.  Dec.  370; 
Richard  v.  Allen,  117  Pa.  St.  199.  In  the  last-named  case  the  goods 
of  a  partnership  wore  levied  upon  and  sold  under  two  several  writs 
against  the  two  members  thereof  individually,  and  subsequently 
under  another  writ  against  the  partnership.  The  plaintiffs  claimed 
under  the  first  levy  and  the  defendants  under  the  second.  In  dis- 
posing of  the  case  the  court  said:  "We  may  admit,  for  the  purposes 
of  this  case,  however  doubtful  the  proposition,  that  a  constable  may 
levy  an  execution  which  he  holds  against  an  individual  member  of 
a  firm  on  his  interest  in  the  goods  and  assets  of  the  partnership; 
yet,  even  with  this  admission,  the  case  in  hand  is  by  no  means 
determined  in  favor  of  the  plaintiffs  in  error.  The  constable's  levies 
were  necessarily  confined  to  the  property  of  the  individuals  against 
whom  they  were  issued,  qua  individuals,  and  his  seizure  of  the 
goods  of  the  firm  was  a  trespass,  and  legally  void.  A  partnership 
Is  a  distinct  entity,  and  the  joint  effects  belong  to  it,  and  not  to 
the  several  partners:  Doner  v.  Stauffer,  1  Pen.  &  W.  198,  21  Am. 
Dec.  370.  It  follows  that  the  levies  on  the  goods  of  the  firm  of 
Sargent  &  Holt,  for  the  several  debts  of  the  individual  members 
of  that  firm,  created  no  lion  upon  those  goods,  and  were,  in  fact, 
as  nugatory  as  though  levied  upon  the  properly  of  a  stranger.  Ad- 
mittedly, had  the  sale  been  on  but  one  of  the  writs,  the  purchaser 
would  have  taken  no  right  in  the  firm  assets,  but  only  the  right 
to  compel  an  account  with  the  continuing  partner,  and  such,  also,  is 
the  purport  of  the  first  section  of  the  act  of  the  8th  of  April,  1873. 
If,  however,  a  levy  on  the  interest  of  a  single  partner  would  have 
created  no  lien  on  the  goods  in  controversy,  we  cannot  see  how  a 
levy  on  the  individual  interests  of  both  could  alter  the  legal  aspect 
of  affairs,  for  in  either  case  those  interests  were  several,  and  the 
firm  rights  remained  unaffected.  The  action  of  the  constable  did 
not  deprive  the  partnership  of  the  control  of  its  own  goods:  the 
several  partners  still  continued  to  be  agents  of  the  firm,  and  it 
Vol.  I.— 34 


§  125       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  630 

the  purchaser  does  not  acquire  the  right  to  hold  pos- 
Bession  of  the  property  purchased,  as  against  the  other 
members  of  the  firm,  but  only  an  interest  in  the  pro- 
ceeds after  the  business  of  the  firm  shall  have  been  set- 
tled.^*'-** 

would  not  be  proper  to  say  that  a  sale  by  both  or  either  of  them, 
as  such,  would  not  have  passed  a  good  title  to  a  purchaser  of  those 
goods  regardless  of  the  levies.  But  the  sheriff's  levy,  made  by 
virtue  of  an  execution  issued  on  a  judgment  against  the  partnership, 
w-as  a  lien  on  the  goods  themselves,  and  his  sale  was  not  the  dis- 
position of  a  mere  right  in  the  firm,  but  of  the  property  itself,  and 
therefore  vested  in  his  vendee  the  absolute  ownership  thereof,  leav- 
ing to  the  constable's  vendees  the  right  to  have  so  much  of  the 
proceeds  of  the  sale  as  remained  after  the  satisfaction  of  the  sheriff's 
writ.  Had  there  been  no  levy  by  the  sheriff  on  the  property  in 
question  until  after  the  sale  to  the  plaintiffs,  their  case  would  have 
been  different;  in  that  event,  the  interest  of  both  parties  having 
been  disposed  of,  there  would  thereafter  have  been  no  partnership 
in  existence,  hence  no  firm  goods  on  which  to  levy.  Doner  v.  Stauf- 
fer,  supra.  The  equities  of  partnership  creditors  depend  on  the 
equities  of  the  partners,  and  as  long  as  a  partner  continues  to 
have  an  interest  in  the  partnership,  so  long  do  the  equities  of  the 
firm  creditors  continue;  but  when  the  rights  of  all  the  partners 
have  been  disposed  of,  either  by  judicial  or  private  sale,  neither  pai't- 
nership  nor  partnership  rights  remain;  and  consequently  they,  the 
creditors,  have  no  longer  anything  to  which  they  can  look  for  a 
satisfaction  of  their  claims,  except  individual  responsibility.  But 
as  a  levy  on  the  right  of  a  partner  neither  divests  that  right  nor 
dissolves  the  partnership,  clearly  the  power  of  the  firm  to  dispose 
of  its  own  goods  is  not  thereby  affected,  and  as  a  consequence  the 
equities  of  the  firm  creditors  remain.  That  the  judgment  was  con- 
fessed by  the  firm  subseciuently  to  the  levies  by  the  constable,  even 
though  the  debt  for  which  it  Avas  given  was  contracted  after  those 
levies,  is  not  of  material  couseqiience;  it  was,  nevertheless,  a  debt 
of  the  firm,  for  the  payment  of  which  the  goods  might  have  been 
assigned,  or  converted  into  cash;  and  as  the  levies  by  the  constable 
created  no  lien,  the  property  was  entirely  fi*ee  for  seizure  on  the 
execution  against  the  partnership." 

294  Deal  V.  Bogue,  20  Pa.  St.  228,  57  Am.  Dec.  702:  Ileinheimer  v. 
Hemingway,  35  Pa.  St.  432;  Crane  v.  French.  1  'Wend.  311;  Gibson 
V.  Stevens,  7  N.  H.  3.12;  Carvin  v.  Paul,  47  N.  IT.  158;  Clagett  v. 
Kilbourne,  1  Black,  340;  Sutcliffe  v.  Dohrman,  IS  Oliio.  181,  51  Am. 
Dec.  4.50;  Sitler  v.  Walker,  Freeman  Ch.  77;  Beviiu  v.  Allee,  3  Harr. 


631  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  125 

There  is  such  an  inhereut  dilliculty  attending;  the 
levying  upon  the  interest  of  a  partner  in  personal  prop- 
erty that  the  legislature  ought  to  inlcrjjose  in  every 
state  and  authorize  the  subjecting  of  the  interest  of  a 
partner  to  execution  without  any  other  than  a  formal 
levy,  or,  perhaps,  better  still,  by  proceedings  in  garnish- 
ment, whereby,  upon  serving  a  notice  upon  the  other 
members  of  the  tirni,  the  debtor's  interest  therein 
should  be  made  subject  to  the  execution;  for,  if  an  offi- 
cer is  permitted  to  seize  upon  specific  chattels  and  sub- 
ject them  to  execution,  the  other  partners  must  be  very 
greatly  inconvenienced,  and  the  interest  of  the  debtor 
partner  is  likely  to  be  sacrificed,  because,  until  an  ac- 
counting can  be  had,  it  cannot  be  known  what  the  pur- 
chaser at  the  execution  sale  will  acquirer  If,  as  many 
of  the  cases  maintain,  every  levy  of  the  writ  agaimit  a 
partner  must  be  upon  all  the  personal  property  of  the 
partnership  or  upon  all  his  interest  in  the  firm,  start- 
ling consequences  must  ensue.  "Though  the  debt  were 
trifling  in  amount,  it  would  require  the  entire  property 
of  a  great  partnership  to  be  seized  and  the  interest  of 
the  defendant  therein  sold,  and,  in  cases  where  the  per- 
sonal property  of  the  partnership  was  located  in  difl!er- 
ent  places,  though  widely  distant  from  one  another,  it 
would  seem  to  require  a  levy  and  seizure  everywhere 
to  give  validity  to  a  seizure  or  sale  anywhere."  ^'"^^ 

Though  the  right  of  the  officer  to  seize  the  property 
of  a  partnership  under  an  execution  against  one  of  its 
members  is  conceded,  it  must  be  exercised  "as  far  as 

(Del.)  SO;  Parsons  on  Partnership.  352:  3  Southern  L.  R.  2.'t0-273. 
In  Ahibama,  It  seoms  that  the  purchaser  is  entitled  to  be  in  pos- 
session jointly  with  the  partners,  but  not  to  their  exclusion.  An- 
drews V.  Keith.  34  Ala.  722. 

295  Note  to  Russell  v.  Cole,  57  Am.  St.  Rep.  441. 


§  125a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  532 

possible  in  harmony  with  the  rights  of  the  other  part- 
ners, and  not  in  hostility  to  them.  Ilis  power  to  take 
and  deliver  possession  of  the  corpus  of  the  property  is 
merely  incidental  to  the  right  to  reach  the  interest  of 
the  debtor,  and  is  to  be  exercised  only  as  a  means  to 
that  end.  Consequently,  if  he  exceeds  that  limit,  and 
undertakes  to  interfere  with  the  rights  of  the  other 
partners  to  a  greater  extent  than  is  necessary  to  reach 
the  interest  of  the  debtor  partner,  and  dispose  of  it,  as, 
when,  instead  of  selling  the  interest  of  the  debtor  part- 
ner, he  undertakes  to  sell  the  entire  property,  though 
his  act  is  nugatory,  such  interference  renders  him  liable 
as  a  trespasser  ab  initio."  *^® 

§  125  a.  Property  Subject  to  Execution  in  Equity.— 
Under  statutes  now  in  force  in  England  and  in  the 
United  States,  writs  of  fieri  facias  may  be  issued  to  en- 
force decrees  directing  the  payment  of  specific  sums  of 
money.  These  writs  may  unquestionably  be  levied 
upon  any  property  which  would  be  subject  to  levy  un- 
der like  writs  issued  upon  judgments  at  law.  Courts 
of  law  formerly  took  no  notice  of  mere  equitable  estates 
and  interests,  and  hence  they  were  generally  not  sub- 
ject to  execution  at  law.  These  estates  and  interests 
were,  however,  always  regarded  in  (Hjuity.  In  fact,  a 
large  portion  of  its  jurisdiction  was  devoted  to  their 
consideration  and  maintenance,  and  for  most  purposes 
they  were,  in  its  tribunals,  not  less  potent  than  though 
united  with  the  legal  title.  Will  such  estates  and  in- 
terests be  ignored,  when  proceeding  niuler  a  fieri  facias 
issued  upon  a  decree  in  chancery,  in  those  states  where 

298  Atkins  V.  Saxton.  77  N.  Y.  109;  Neary  v.  Cahfll,  20  111.  214; 
Waddell  v.  Cook,  2  Hill,  47.  37  Am.  Doc.  .372;  Edgar  v.  Caldwell,  1 
Morris,  434;  Snell  v.  Crowe,  3  Utah,  2G. 


633  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.      §  lL'5a 

they  are  not  subject  to  execution  at  law?  We  have 
discovered  no  case  considering  this  question.  Unless 
the  statute  conferring  the  power  to  use  this  writ  in 
enforcing  decrees  expressly  restricts  its  use  to  cases 
where  it  might  be  employed  at  law,  we  think  that  it 
ought  to  be  adjudged  to  authorize  the  seizure  and  sale 
of  property  of  which  the  debtor  has  the  equitable  title, 
and  which  would  be  subject  to  execution  at  law  if  he 
were  also  vested  with  the  legal  title. 

In  many  instances,  specific  property  is  directed  to 
be  sold  by  the  decree.  In  these  cases,  the  officer  con- 
ducting the  sale,  and  intending  purchasers  thereat, 
need  only  consider  the  directions  of  the  decree,  if  ju- 
risdiction has  been  obtained  over  all  the  parties  inter- 
ested in  the,  property  ordered  to  be  sold.  Whatsoever 
has  been  decreed  to  be  sold,  and  no  more,  is  subject  to 
sale. 

According  to  the  practice  of  the  court  of  chancery 
prior  to  the  introduction  of  any  statutory  innovations, 
no  property  was  subject  to  execution  in  equity,  in  the 
sense  in  which  those  terms  were  understood  at  law. 
It  is  true  that  sequestrators  were  authorized  to  take 
possession  of  certain  property  of  the  defendant.  A 
commission  or  writ  of  sequestration  was  said  not  to  be 
a  writ  of  execution,  but  a  mere  process  to  punish  a  con- 
tempt of  court.^'^  While  it  nominally  issued  to  pun- 
ish contempts,  it  was  an  efficient  means  of  enforcing 
decrees,  and  therefore  answered  the  purposes  of  writs 
of  execution.^'^  The  issue  of  the  writ  did  not  create 
any  lien  on  any  property,  nor  give  the  sequestrators 
any  precedence  over  any  bona  fide  lessee,  purchaser,  or 

297  Brune  v.  Robinson,  7  I.  R.  Eq.  1^8. 

29^  BfKldinsifield  v.  Zoucb,  2  Fieem.  IGS;  Hide  v.  Petit,  2  Freem. 
135;  1  Cli.  Cas.  91. 


§  125a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  Sol 

encumbrancer  thereof,  whose  title  accrued  at  any  time 
prior  to  their  taking  possession.^^  Prior  encum- 
brances were  respected  if  made  in  good  faith; ''^"**  but 
transfers  and  encumbrances  made  for  the  purpose  of 
rendering  the  sequestration  abortive,  to  one  having 
notice  of  this  purpose,  were  disregarded."'**^^  With  re- 
spect to  lands,  it  is  quite  certain  that  the  sequestrators 
acquired  no  title,  and  hence  could  make  no  sale.®®^ 
They  were,  however,  b^'  their  writ,  authorized  to  take 
possession  of  the  defendant's  lands,  tenements,  goods, 
and  chattels,  and  to  receive  the  rents  and  profits  there- 
of. When  these  rents  and  profits  were  payable  in  kind, 
or  when  the  sequestrators  received  the  natural  produce 
of  the  lands  seized,  an  order  of  court  might  be  obtained 
for  the  sale  of  such  chattels,^*****  and,  perha])s,  other  per- 
sonal property  of  a  party  in  contempt  for  the  nonpay- 
ment of  money  might  be  ordered  sold."*^*  All  property 
of  a  tangible  character,  of  which  the  sequestrators 
could  obtain  possession  without  suit,  was  subject  to  se- 
questration, and  they  might  open  boxes  and  rooms 
which  were  locked  to  obtain  possession  of  the  goods 

200  Vicars  v.  Colocloiish.  5  Brown  Pari.  C.  31;  Ex  parte  Nelson, 
L.  R.  14  Ch.  D.  41;  49  L.  J.  Bankrnptcy,  44;  42  L.  T.  389;  28  Week. 
Rep.  5."4. 

300  Burne  v.  Robinson.  7  I.  R.  Eq.  188;  Tatbam  v.  Parker.  1  Smale 
&  G.  506;  17  Jxir.  929;  22  L.  J.  Cb.  203. 

301  Ward  v.  Bootb,  L.  R.  14  Eq.  195:  41  L.  .7.  Cb.  720:  27  L.  T., 
N.  S..  3G4;  20  "Week.  Rep.  880;  Coulston  v.  Gardiner.  3  Swans.  279. 
note. 

302  Coats  V.  Elliott,  23  Tex.  GOO:  Sbaw  v.  W^rii.'bt.  3  Ves.  22:  Rut- 
ton  V.  Stone.  1  Dick,  107:  Foster  v.  Towusbend.  2  Abb.  N.  C.  29;  68 
N.  Y.  203. 

303  Shaw  V.  Wright,  3  Ves.  22. 

304  Cavil  V.  Smith,  3  Brown  Ch.  362:  In  re  Rush.  L.  R.  10  Eq.  442; 
18  Week.  Rep.  417;  22  L.  T.,  N.  S.,  116;  Cowper  v.  Taylor,  16  Sim. 
314. 


535  PERSONAL  rilOPEKTY  SL'liJECT  TO  EXECUTION.      §  rJ3a 

therein.**"'*  Property  seized  by  them  thereby  became 
in  the  custody  of  the  law,  and  any  interference  with 
their  possession  not  authorized  by  the  court  was  pun- 
ished as  a  contempt.^^*  If  the  property  seized  was 
claimed  by  a  stranger  to  the  Avrit,  it  was  necessary  for 
him  to  come  before  the  court  and  present  his  claim; 
and,  if  convinced  of  its  validity,  the  court  would  order 
the  restoration  of  the  property,  and  sometimes  award 
damages  for  its  detention.^"*^  Where  iiKmeys  were  due 
for  rents  of  lands  of  the  defendant,  subject  to  the  se- 
questration, they  might  be  ordered  paid  to  the  seques- 
tra tors.-"*"*  AMiere  funds  or  moneys  are  under  the  con- 
trol of  the  court,  which  the  defendant  is  entitled  to  re- 
ceive, they  may  be  subjected  to  the  sequestration  by 
obtaining  an  order  of  the  court  for  their  payment  to 
the  sequestrators.^*"^  The  pay  of  a  public  officer,  for 
which  the  government  is  entitled  to  any  services,  is,  on 
principles  of  public  policy,  not  subject  to  sequestra- 
tion.^^" Tensions  granted  for  past  services  may  be 
secured  to  the  sequestrators  by  obtaining  an  injunction 
restraining  the  defendant  from  receiving  them.^^^ 
Choses  in  action  have  sometimes  been  spoken  of  by  the 

305  Pelham  v.  Newcastle,  3  Swans.  290,  note;  White  v.  Geraerdt, 
1  Edw.  Ch.  33(). 

306An?:el  v.  Smith.  9  Ves.  ?>P,G;  Copoland  v.  Mape,  2  Ball  &  B.  06. 

307  Franclclyn  v.  Colhoun,  3  Swans.  310;  Telham  v.  Newcastle.  3 
Swans.  290.  note. 

sot  Wilson  V.  Metcalfe,  8  L.  .T.  Ch.  3.31;  1  Beav.  203. 

309  Claydon  v.  Finch,  L.  R.  l.^i  Eq.  200;  Conn  v.  Garland,  L.  R.  9 
Ch.  101;  22  Woel<.  Ilep-  l"-'^:  Slade  v.  liulme.  L.  R.  IS  Ch.  D.  653;  50 
L.  J.  Ch.  729;  45  L.  T.,.  N.  S..  276:  .30  Week.  Rep.  2S. 

310  McCarthy  v.  Goold.  1  Ball  &  B.  3S9:  Kenton  v.  Lowther.  1  Co.x, 
315;  Spooner  v.  Bayne,  1  De  Gex.  M.  &  G.  388. 

811  McCarthy  v.  Goold.  1  Ball  <S:  B.  3S9:  Willcock  v.  Terrell,  L.  R. 
3  Ex.  D.  323;  Dent  v.  Dent,  L.  R,  1  V.  &  D.  366. 


§  125a      PERSONAL  rKOPEKTY  SUBJECT  TO  EXECUTION.  636 

courts  as  subjects  of  sequestration;  ^^'  but  they  are  so 
to  a  very  limited  extent.  If  the  person  from  whom 
they  are  owing  is  a  party  to  the  suit,  or  otherwise  before 
the  court,  or,  if  he  voluntarily  appears  and  assents 
thereto,  an  order  may  be  made  directing  him  to  pay  to 
the  sequestrators  the  amount  due  from  him  to  the  de- 
fendant."*^ It  was  formerly  insisted  that  if  a  person, 
owing  moneys  to  the  defendant,  did  not  voluntarily  ap- 
pear, there  was  no  mode  of  proceeding  against  him, 
and  of  thereby  enabling  the  sequestrators  to  obtain  pos- 
session of  the  funds  in  his  hands.  In  Miller  v.  Huddle- 
stone,  L.  R.  22,  Ch.  Div.  233,  a  writ  of  sequestration  is- 
sued against  the  real  and  personal  estate  of  the  defend- 
ant M.,  in  pursuance  of  which  the  sequestrators  at- 
tached his  balance  on  the  books  of  his  bankers,  but  they 
declined  to  give  any  information  respecting  the  amount 
thereof.  A  motion  w^as  then  made  that  they  pay  into 
court  the  amount  in  their  hands.  The  judge  to  whom 
the  motion  was  submitted  was  of  the  opinion  that  he 
had  jurisdiction  to  make  the  order  asked  for,  and  an  or- 
der was  thereupon  made  that  the  bankers  verify  the 
balance  of  the  defendant  by  affidavit,  unless  it  w^as  ad- 
mitted at  the  bar;  and,  the  amount  having  subsequent- 
ly been  admitted,  an  order  was  made  that  the  bankers 
pay  that  sum  into  court  to  the  credit  in  the  suit  of  the 
sequestration  account.  This  and  other  decisions  would 
seem  to  indicate  that  a  chose  in  action  may  be  reached 
by  sequestration,  not  only  in  those  cases  in  which  the 
person  having  it  in  possession,  or  from  whom  it  is  due, 
is  a  party  to  the  suit,  but,  further,  that  he  may  be,  in  ef- 
fect, made  such  a  party  by  an  application  to  the  court, 

312  Wilson  V.  Metcalfe.  1  Beav.  2^3;  8  L.  J.  Cli.  331 ;  Grew  v.  Breed. 
12  Met.  363;  White  v.  Geraerdt,  1  Edw.  Ch.  336. 

813  Crispin  v.  Cumano,  L.  It.  1  P.  &  D.  622;  .Johnson  v.  Chipplndall, 
2  Sim.  55;  McCarthy  v.  Goold,  1  Ball  &  B.  389. 


«37  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  126 

upon  notice  to  him,  for  an  order  re(iiiiiing  him  to  de- 
liver possession  of  such  chose  in  action  or  to  pay  the 
amount  thereof  when  due  from  him  into  court  for  the 
benefit  of  the  sequestration  account."'""* 

DEFENDANTS    WHOSE     rROrEKTY    CANNOT    BE     LEVIED 
UPON    AND    SOLD. 

§  126.  Property  of  a  County  or  of  a  Municipal  Corpora- 
tion.— We  have  shown,  in  a  precLMliny  section,"*'*  that  it 
was,  under  ordinary  circumstances,  erroneous  to  award 
an  execution  against  a  county  or  a  municipal  corpora- 
tion. Where  this  rule  of  law  i)revaiis,  it  is  clear  that 
no  property  of  a  county  or  a  city  is  subject  to  seizure 
under  execution;  for,  in  contemplation  of  law,  there 
can  be  no  valid  execution.  Thus,  in  California,  a  suit 
was  regularly  prosecuted  against  a  parcel  of  land  for 
delinquent  taxes  thereon,  and  a  judgment  in  rem  ob- 
tained. A  sale  having  been  made  under  this  judgment, 
the  purchaser  applied  to  be  let  into  possession  of  the 
property.  He  was  resisted,  on  the  ground  that  the  land 
belonged  to  a  city,  and  was  used  by  it  as  a  public  ceme- 
tery. The  court  held  the  tax  suit  unauthorized,  and  the 
judgment  therein  coram  non  judice;  and  that  the  sale 
was,  therefore,  void.^^** 

In  Illinois,  the  question  of  what  classes  of  property 
belonging  to  a  municipality  may  be  subject  to  execu- 
tion against  it  can  never  arise,  for  in  that  state  there  ap- 
pears to  be  no  contingency  in  which  an  execution  may 

si4Ward  v.  Booth.  L.  R.  14  Eq.  201. 

315  City  of  Rloominffton  v.  Brokaw.  77  IlL  194;  City  of  Morrison 
V.  Hinkson.  87  111.  r>S7.     Soo  §  22. 
810  People  V.  Doe  G.  1034,  36  Cal.  220. 


§  126       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  53& 


be  awarded  or  issued    against  a  municipal    corpora- 
tion.^^^ 

The  question  whether  or  not  a  parcel  of  property  be- 
longing to  a  municipal  or  other  public  corporation  is 
subject  to  execution  must  be  determined  by  ascertain- 
ing the  uses  and  purposes  for  which  such  property  is, 
held.  In  some  of  the  states,  all  property  belonging  to 
a  municipal  corporation  is  presumed  to  be  exempt  from 
execution,  and,  hence,  he  who  seeks  to  justify  such  a 
levy,  or  to  support  title  thereunder,  must  assume  the 
burden  of  proving  that  the  property  in  question  was  of 
a  character  which,  notwithstanding  its  ownership,  ren- 
dered it  subject  to  execution.^**  Such  a  corporation  is 
generally  either  a  part  of  the  government  or  an  instru- 
mentality through  which  some  portion  of  the  functions 
of  government  are  exercised.  It  may  acquire  and  use 
property  for  the  purposes  of  public  schools,  hospitals, 
prisons,  courts,  and  for  divers  other  uses  in  which  the 
public  is  concerned,  its  welfare  promoted,  and  the  func- 
tions of  government  discharged.  When  held  for  sucli 
purposes,  the  property  does  not  partake  of  the  charac- 
ter of  private  ownership,  and  is  clearly  not  subject  to 
execution.^^'*  "We  do  not  hesitate  to  declare  that  city 
property,  owned  or  used  by  the  corporation  for  public 
purposes,  such  as  public  buildings,  public  markets,  hos- 
pitals, cemeteries,  engine  houses,  fire  engines,  and  their 
apparatus,  and  other  property,  real  or  personal,  of  kin- 

317  City  of  Morrison  v.  Hinkson.  87  111.  r),S7.  20  Am.  Rep.  77;  Flora 
V.  Nancy,  13^  111.  45;  City  of  Tokin  v.  Mc:Mnlion.  IM  111.  1."!,  45 
Am.  St.  Eep.  114;  City  of  Danville  v.  Mitchell,  G3  111.  App.  G47. 

818  Curry  v.  Savannah.  64  Ga.  200.  .37  Am.  Rop.  74. 

310  state  V.  Tiofloman,  69  Mo.  306,  33  Am.  Rep.  40S;  Gooch  v. 
Groffory,  O.^  N.  C.  142;  Virden  v.  Fishback,  0  111.  App.  82:  T.yon  v. 
Elizabeth.  43  N.  J.  L.  158;  City  of  Davenport  v.  P.  M.  &  F.  I.  Co., 
17  Iowa,  27G. 


539  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  I'Jti 

dred  utility,  caDnot  be  taken  in  execution  for  the  debts 
of  the  city.  But  if  the  city  owns  private  projierty,  not 
useful  or  used  for  corporate  puri)oses,  such  jjroperty 
may  be  seized  and  sold  under  final  process,  precisely  as 
similar  property  of  individuals  is  seized  and  sold."  ^"" 
It  would  be  intolerable  that  these  instrumentalities 
should  be  seized  and  the  functions  of  government  either 
suspended  or  destroyed.  Nor  would  a  mere  change  in 
the  form  of  the  property  subject  it  to  execution.  Hence, 
there  cannot  be  any  garnishment  of  moneys  due  a  mu- 
nicipality for  insurance  upon  a  school-house  which  ha^ 
,been  destroyed  by  fire.^^*  Blocks  of  land  used  by  a 
city  for  wharf  and  levee  purposes,  and  upon  which 
charges  are  made  by  the  city  for  wharfage,  are  not  sub- 
ject to  execution;  for  the  providing  of  such  wharves, 
and  the  collecting  of  tolls  thereon,  are  matters  of  gov- 
ernmental regulation."'^^  Kor  is  it  necessary  to  exempt 
the  property  of  a  city  that  it  be  then  in  actual  public 
use,  if  it  has  formerly  been  so  used,  for  it  will  be  pre- 
sumed to  be  intended  for  such  use  until  the  contrary  is 
shown.^^^  "Property  held  for  public  uses,  such  as 
public  buildings,  streets,  squares,  parks,  promenades, 
wharves,  landing-places, fire-engines,  hose  and  hose-car- 
riages, engine-houses,  engineering  instruments,  and, 
generally,  ever3'thing  held  for  governmental  purposes, 
cannot  be  subjected  to  the  payment  of  the  debts  of  the 
city.  Its  public  character  forbids  such  an  appropria- 
tion." "^*  And  this  rule  has  been  held  to  extend  to 
judgments  obtained  under  the  mechanics'  lien  law,  for 

820  Mayor  of  Birminchnm   v.   Ruinsoy,  63  Ahi.   356. 
82iFloishel  v.  Hijrhtowor.  C,2  Oa.  324. 

822  Klein  v.  New  Orlonns.  00  F.  R.  140. 

823  Curry  v.  Savauiuili.  04  O.a.  200.  37  Am.  Rop.  74;  21  Alb.  L.  J. 
34. 

S24  Meriwether  v.  Garrett.  102  U.  S.  501. 


§  126       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  54U 

work  done  and  materials  furnished  toward  the  erection 
of  a  public  school-house.^^®  This  immunitj^  from  exe- 
cution extends  to  all  the  public  revenues  of  a  city, 
whether  derived  from  taxes  or  other  sources;  for  to 
permit  their  seizure  would  necessarily  suspend  the  gov- 
ernmental functions  of  the  city  almost  as  effectually 
as  the  repeal  of  its  charter.*''**  Nor  do  such  revenues 
become  subject  to  seizure  because  deposited  in  a  pri- 
vate bank  or  other  depository.^*'  Doubtless,  it  is  with- 
in the  power  of  the  legislature  to  authorize  the  creation 
and  enforcement  of  mechanics'  and  materialmen's  liens 
against  public  buildings  and  other  property  of  munici- 
pal corporations.  The  presumption  is,  however,  against 
an  intention  to  exercise  this  power,  and  hence,  any  stat- 
ute declaring,  in  general  terms,  that  every  contractor 
or  materialman  shall  have  a  lien  upon  a  building  or 
structure  toward  the  erection  or  repair  of  which  he  has 
furnished  labor,  or  given  material,  must  be  construed 
as  applying  to  private  property  only,  and  as  not  extend- 
ing to  that  class  of  the  property  of  municipal  corpora- 
tions not  ordinarily  subject  to  execution.^^*  "For  rea- 
sons of  public  policy,  and  the  public  necessity,  courts, 
in  construing  statutes  that  create  liens  against  build- 

325  Brinclvprhoff  v.  Board  of  Erinoation.  fi  Abb.  Pr..  N.  F?..  428:  37 
Ho-^v.  Pr.  400;  2  Paly,  443:  Lnrinsr  v.  Small.  ISO  Iowa.  571.  32  Am. 
■Rpp.  13R:  Charnock  v.  Colfax.  51  To^va.  70;  Dillon  on  Municipal 
norporations.  sec.  577:  IMayrhofer  v.  Bd.  of  Ednration.  80  Cal.  110; 
23  Am.  St.  Rep.  451. 

326BroTvn  v.  Gates.  15  W.  Ya.  131:  Eserton  v.  Municipality.  1  La. 
Ann.  435:  Municipality  v.  Hart.  H  La.  Ann.  570:  N.  O.  &  C.  R.  R. 
V.  Municipality.  7  La.  Ann.  148:  Police  .Tury  v.  ^Michel,  4  La.  Ann. 
84:  City  of  Chicagro  v.  Hasley,  25  111.  505;  Hart  v.  City  of  New  Or- 
leans. 12  Fed.  Rep.  202. 

327  Peterkin  v.  New  Orleans,  2  Woods,  101. 

328  Park  Co.  v.  O'Connor,  86  Ind.  531:  McKnicht  v.  Grant.  30  La. 
Ann.  361.  44  Am.  Rep.  338;  Ripley  r.  Gacre  County.  3  Neb.  397j 
Leonard  v.  City  of  Brooklyn,  71  N.  Y.  498.  27  Am.  Rep.  80. 


641  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  1C6 

ings  generally  do  not  include  within  the  operation  of 
the  statute  buildings  and  grounds  used  and  devoted  to 
public  purposes  and  uses,  and  that  are  constructed  for 
such  purpose.     The  weight  of  authority  numerically, 
and  also  for  the  better  reason,  asserts  the  rule  that 
builders'  and   mechanics'    liens  can   only   be   created 
against  public  buildings  and  grounds  when  the  right  is 
expressly  conferred  by  the  statute;  that  the  grant  of 
lien  against  ''all  buildings''  will  not  be  held  to  include 
public  buildings  and  grounds,  unless  they  are,  by  the 
express  terms  of  the  statute,  included  within  its  opera- 
tion." ^^^  ^  Hence,  a  system  of  waterworks  provided  by 
a  city  for  the  protection  and  convenience  of  its  inhabi- 
tants is  not  subject  to  a  mechanics'  lien  for  material;* 
furnished  to  be  used,  and  used,  in  its  construction.*'^-''* 
This  rule  is  necessarily  equally  applicable  to  execu- 
tions issued  upon  ordinary  money  judgments  and  seek- 
ing to  reach  such  waterworks  or  shares  of  stock  therein 
owned  by  the  municipality.    Hence,  it  was  held  that  a 
statute    purporting   to    exempt  from  execution    such 
shares  of  stock  could  not  be  successfully  assailed  as  im- 
pairing the  contracts  or  rights  of  pre-existing  creditors 
of  the  city.  In  a  case  in  which  this  question  arose,  it  ap- 
peared that  the  state  legislature  had,  by  statute,  auth- 
orized a  city  to  convert  its  ownership  in  property  held 
for  its  use  into  shares  of  a  joint  stock  corporation,  and 
declared  that  they  should  be  exempt  from  judicial  sale 
for  the  debts  of  the  city.     It  was  admitted   that  the 
property  thus  authorized  to  be  converted,  to  wit,  cer- 
tain waterworks,  was  not  liable  to  be  sold  for  the  debts 

82RaAtacosa  County  v.  Angus.  83  Tex.  202,  29  Am.  St.  Rep.  637 
829  Chr.pnian  M.  Co.  v.  Oconto  W.  Co.,  89  Wis.  204.  46  Am.  St 

Rep.  830;  Wilkinson  v.  TToffnian.  ni  Wis.  r>?,7:  cninrn.   X;ition.Tl   F. 

&  P.  W.  v.  Oconto  W.  Co.,  52  Fed.  Rep.  43,  59  Fed.  Rep.  19,  7  Cir. 

Ct.  App.  G03. 


§  126       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  542 

of  the  city,  and  the  court  said  that,  though  this  aduiis- 
eion  had  not  been  made,  it  was  clear  that  the  works  in 
question  "were  of  such  public  utility  and  necessity  that 
they  were  held  in  trust  for  the  use  of  the  citizens.  In 
this  respect  they  were  the  same  as  public  parks  and 
buildings,  and  were  not  liable  to  sale  under  execution 
for  ordinary  debts  against  the  city;"  that,  such  being 
1he  case,  the  legislature  had  merely  changed  the  form 
of  the  city's  ownership  in  the  property,  the  shares  rep- 
resenting the  waterworks,  and  the  statute  in  question 
but  continued  the  property  in  the  hands  of  the  city  in  a 
changed  form,  subject  to  the  same  exemption  which 
had  before  existed,  and,  hence,  it  did  not  impair  the 
rights  of  any  creditor  of  the  municipality.^""^® 

An  intention  to  subject  property  of  a  municipal  cor- 
poration to  execution  will  not  be  presumed  in  the  ab- 
sence of  language  necessarily  indicating  it.  Therefore, 
it  has  been  held  that,  though  a  statute  enumerated 
specified  classes  of  property  belonging  to  a  city  as  be- 
ing exempt  from  sale  under  execution,  this  did  not  im- 
ply that  all  its  property  not  so  enumerated  was  subject 
to  execution.  In  this  case  an  execution  in  favor  of  a 
judgment  creditor  of  a  county  was  levied  upon  prop- 
erty consisting  of  scrapers,  plows,  estray  brands,  etc., 
and  the  same  was  sold  to  satisfy  the  execution.  The 
county  thereupon  brought  an  action  against  the  plain- 
tiff in  the  writ,  the  sheriff  who  took  the  property,  the 
justice  who  rendered  the  judgment,  and  the  attorney 
who  advised  the  suit,  charging  them  with  conspiracy 
and  unlawful  conversion  of  the  property  of  the  county. 
The  question  presented  was  whether  such  property  was 
liable  to  be  levied  upon  and  sold,  and  the  defendants 

330  New  Orlofins  v.  Morris,  105  U.  S.  GOO. 


543  PERSONAL  PROPERTY  SUBJFXT  TO  EXECUTION.       §  12G 

insisted  that  it  was  subject  to  levy  and  sale  for  the  rea- 
son that  it  was  not  included  within  the  classes  of  prop- 
erty enumerated  in  the  statute  as  not  being  subject  to 
execution  under  a  writ  against  the  county.     The  court 
said:    "The  nature,  objects,  and  liabilities  of  political, 
municipal,  or  public   corporations,  like  a  county   in  a 
state,  stand  upon  a  different  ground  from  private  cor- 
porations.    A  county  is  one  of  the  political  divisions  of 
the  state,  signifying  a  community,  Clothed  wilh  such 
extensive  authority  and    political    power   as   may  be 
deemed  necessary  for  the  superior  controlling  power  of 
the  state  for  the  proper  government  of  its  people  re- 
siding within  its  borders,  and  for  the  proper  adminis- 
tration of  its  local  affairs.     A  county  can  raise  revenue 
by  taxation,  make  public  improvements,  and  defray  the 
expenses  of  the  same  by  taxation,  exercise  certain  speci- 
fied judicial  powers,  and  generally  act  within  the  au- 
thorized sphere  created  and  abridged  by  the  statute  or 
constitution  of  the  state.     The  power  of  taxation  fur- 
nishes the  means  by  which  it  may  pay  its  debts   and 
meet  obligations  necessarily  incurred  for  the  many  pur- 
poses of  its  existence   and   welfare.     The  county   has 
control  of  the  county  property  to  be  used  and  disposed 
of  to  promote  corporate  purposes.    It  does  not  possess 
property  liable  to  execution  in  the  same  sense  that  an 
individual  possesses  it.     Levying  upon  and  selling  the 
property  or  revenues  of  a  county,  or  removing  it,  may 
work  irreparable  injury,  and  ruin  its  inhabitants.     We 
are  unable  to  find,  nor  has  our  attention  been  called  to, 
any  statute  in  this  state  expressly  giving  authority  to 
levy  an  execution,  and  sell  property  of  the  county  for  a 
debt.     It  is  a  general  rule  that  the  people  or  the  sover- 
eiffn  are  not  bound   bv  general  words  in  a  statute  re- 
strictive  of  a  prerogative  right,  title,  or  interest,  unless 


§  126       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  5U 

expressly  named Section  3419  of  the  Compiled 

Laws  of  Utah  of  1888,  giving  a  party  in  whose  favor  a 
judgment  is  rendered  a  right  to  execution,  and  subdi- 
vision 10  of  section  8129,  exempting  certain  classes  of 
property  from  execution  against  a  county,  cannot  be 
extended  so  as  to  include  the  right  to  levy  an  execution 
against  the  property  of  the  county,  state,  or  municipal 
organization,  in  the  absence  of  a  statute  expressly 
granting  such  right  in  express  terms."  ^^^  This  is  mani- 
festly so,  because  it  is  the  purpose  of  the  funds,  and  not 
their  situation,  which  withdraws  them  from  execution. 
Pueblo  lands  held  by  towns  and  cities  under  the  Mexi- 
can laws,  in  trust  for  their  inhabitants,  are  not  subject 
to  execution  against  such  towns  and  cities,  because 
they  have  no  beneficial  interest  therein.^"'-  In  some  of 
the  states,  certain  property  belonging  to  cities  has  been 
decided  to  be  subject  to  execution,  on  the  ground  that 
it  was  not  held  or  used  for  governmental  purposes,  and 
that  its  seizure  would  not  suspend  or  impair  the  exer- 
cise of  the  governmental  functions  delegated  to  such 
cities.^^^  Thus,  in  California,  lands  were  held  subject 
to  execution  which  were  granted  to  a  city  by  the  state, 
with  a  proviso  that  the  city  should  "pay  into  the  state 
treasury, within  twenty  days  after  their  receipt,  twenty- 
five  per  cent  of  all  moneys  arising  from  the  sale  or  other 
disposition  of  the  property."  ^^* 

331  Emery  Co.  v.  Biirreson,  14  Utah.  32S.  60  Am.  St.  Rep.  808. 

332  Hart  V.  Burnett,  15  Cal.  530;  Townseud  v.  Greoly,  5  Wall. 
326. 

333  City  of  New  Orleans  v.  H.  M.  I.  Co.,  23  La.  Ann.  61;  City  of 
New  Orleans  v.  Morris.  3  Woods,  103. 

834  Smith  V.  Morse,  2  Cal.  524;  Holladay  v.  Frishie,  15  Cal.  630; 
W^heeler  v.  Miller,  16  Cal.  124.  See,  also,  Darlington  v.  Mayor  of 
N.  Y.,  31  N.  Y.  164:  Lyell  v.  Supervisors  of  St.  Clair  Co..  3  McLean, 
580.     It  is  said  that  the  apparatus  and  funds  of  the  metropolitan 


645  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.      §  12Ga 

TBe  tax  collector  of  a  city  having  failed  to  pay  taxes 
collected  by  him  to  meet  the  obligations  of  the  city  on 
outstanding  bonds,  a  suit  was  brought  against  him  and 
his  sureties,  resulting  in  a  compromise  and  in  the  con 
veyauce  to  the  municipality  of  certain  real  property, 
which  it  accepted  in  satisfaction  of  its  demand.     This 
property  the  city  was  unable  to  sell,  and  it  was  there- 
fore rented  and  the   proceeds   used  in  paying  the  ex- 
penses of    the  city.     One    of  its    judgment    creditors 
caused  an  execution  to  be  levied  on  the  property  and 
sought  to  defend   his  action  on  the  ground   that   such 
property  was  not  adapted  to,  nor  used  by,  the  city  for 
any  public  purpose,  but  was,  on  the  other  hahd,  resi- 
dence property  not  occupied  by  the  city,  but  rented  by 
It  to  private  individuals.     The  court  was  of  the  opinion 
that,  though  the  property  was  of  a  character  which  or- 
dinarily would  render  it  subject  to  execution  when  held 
by  a  municipal    corporation,  yet,    under   the   circum- 
stances in  which  the  city  acquired  it,  it  must  be  held  to 
stand  in  the  same  position  as  would  moneys  collected 
by  the  tax  collector  for  the  purpose  of  discharging  the 
bonded   indebtedness   of  the  municipality.     In   other 
words,  that  the  property  in  question  must  be  regarded 
as  a  special  fund,  disbursible  only  for  the  purposes  for 
which  it  was  created,  and  hence  that  a  creditor  of  the 
municipality  could  not  acquire  any  right  to  subject  it  to 
execution.^' 

§  126  a.    The  Property  of  Certain  Quasi  Public  Cor- 
porations is  held  by  them  for  the  purposes  of   private 

fire  department  of  New  York  and  Brooklyn  are  subject  to  execution 
In  satisfaction  of  judgments  against  the  department.  Clarissy  v. 
Metropolitan  Fire  Department,  7  Abb.  Pr.,  N.  S.,  ,352;  1  Sweeny.  224. 
In  Alabama  the  creditor  of  a  municipal  corporation  may  garnish 
moneys  in  the  hands  of  a  city  marshal.  Smoot  v.  Hart.  .33  Ala.  GO. 
835  City  of  Sherman  v.  Williams,  84  Tex.  421,  31  Am.  St.  Rep.  6G. 
Vol.  I.— 35 


§  l-26a      PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  546 

gain,  and  has,  so  far  as  its  ownership  is  concerned,  all 
the  advantages  of  private  property;  but  such  corpora- 
tions are  generally  created  and  given  especial  privi- 
leges, with  a  view  to  the  advantages  which  may  ac- 
crue to  the  public.  The  public  is,  therefore,  regarded 
as  having  an  interest  in  the  continued  performance  of 
the  corporate  duties;  and  any  alienation,  whether  vol- 
untary or  involuntary,  of  the  franchises  of  the  corpora- 
tion, or  of  the  property  necessary  to  the  exercise  of  such 
franchises,  is  looked  upon  with  disfavor,  and  in  some  of 
the  states  has  been  peremptorily  forbidden.  Hence,  if 
a  corporation  is  authorized  to  construct  and  maintain 
a  turnpike  or  canal,  and  to  collect  tolls  thereon,  neither 
the  turnpike,  nor  canal,  nor  the  toll-houses,  or  other 
property  indispensable  to  the  maintenance  of  such 
road  or  canal,  can  be  sold  under  execution.^^**  "Most 
people  acquainted  at  all  with  corporate  action  under- 
stand that  corporations  other  than  municipal,  which 
are  purely  public,  naturally  divide  into  public  and  pri- 
vate corporations;  that  is,  into  those  that  are  agencies 
of  the  public,  directly  affecting  it,  and  those  which  af- 
fect it  indirectly,  by  adding  to  its  prosperity  in  devel- 
oping its  natural  resources,  or  in  improving  its  mental 
and  moral  qualities;  of  the  former,  are  corporations 
for  the  building  of  bridges,  turnpike  roads,  canals,  and 
the  like.  The  public  is  directly  interested  in  the  re- 
sults to  be  produced  by  such  corporations  in  the  facili- 
ties afforded  to  travel,  and  the  movements  of  trade  and 
commerce.  It  is  well  settled  that  this  use  is  not  to  be 
disturbed  by  the  seizure,  of  any  part  of  their  property 
essential  to  their  active  operations,  by  creditors.    They 

836Ammant  v.  N.  A.  &  P.  T.  Co..  13  Serg.  &  Tl.  210.  15  Am.  Dec. 
593;  Susquehanna  C.  Co.  v.  Bonham,  9  Watts  &  S.  27,  42  Am.  Dec. 
315. 


547  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.      §  12Ga 

must  recover  their  debts  by  sequestering  their  earn- 
ings, allowing  them  to  progress  with  their  undertaking 
to  accommodate  the  public."  ^'^''  It  was,  therefore, 
held  that  a  corporation  for  introducing  water  into  a 
town  for  the  use  of  its  inhabitants  was  a  public  cor- 
poration, and  that  its  lauds  and  buildiugs  necessary  to 
the  enjoyment  of  its  franchises  were  not  subject  to  exe- 
cution nor  to  a  mechanic's  lien.^**^  This  rule  has  been 
applied  to  a  public  toll-bridge  which,  though  belong- 
ing to  a  private  corporation,  had  been  aided  by  a  do- 
nation from  a  municipality,  and  was,  after  its  construc- 
tion, used  as  a  part  of  a  public  highway,  though  the 
execution  issued  upon  a  judgment  recovered  by  the 
plaintiff  for  moneys  due  him  as  a  contractor  for  the 
erection  of  such  bridge.  The  court,  in  announcing  its 
conclusion,  said:  "We  believe  the  rule  deducible  from 
all  the  cases  may  be  safely  stated  as  follows:  The 
property  of  strictly  private  corporations,  such,  for  in- 
stance, as  manufacturing,  mining,  and  trading  compa- 
nies, and,  perhaps,  those  in  which  the  public  is  indi- 
rectly interested,  as  libraries,  hospitals,  and  the  like,  is 
liable  to  be  taken  on  execution  precisely  as  the  prop- 
erty of  an  individual  debtor,  but  the  property  of  corpo- 
rations which  are  classed  as  public  agencies,  such  as 
railroad  and  bridge  companies,  which  is  essential  to 
the  exercise  of  their  corporate  franchise  and  the  dis- 
charge of  the  duties  they  have  assumed  toward  the  gen- 
eral public  cannot, without  statutory  authority,  be  sold 
to  satisfy  a  common-law  judgment,  either  on  execution 
or  in  pursuance  of  an  order  or  decree  of  court."  ^^*** 
The  same  rule  applies  to  railroad   corporations.     "As 

837  Foster  v.  Fowler,  GO  Pa.  St.  30. 
33S  ibici. 

839  Overton  B.  Co.  v.  Means,  33  Neb.  SoT.  29  Am.  St.  Rep.  514. 


§  126a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  54S 

to  land  which  has  been  appropriated  to  corporate  ob- 
jects, and  is  necessary  for  the  full  enjoyment  and  ex- 
ercise of  any  franchise  of  the  company,  whether  ac- 
quired by  purchase  or  by  exercise  of  the  delegated 
power  of  eminent  domain,  the  company  hold  it  entirely 
exempt  from  levy  and  sale;  and  this  on  the  ground  of 
prerogative  or  corporation  immunity,  for  the  company 
can  no  more  alien  or  transfer  such  land  by  its  own 
act  than  can  a  creditor  by  legal  process;  but  the  ex- 
emption rests  on  the  public  interests  involved  in  the 
corporation.  Though  the  corporation  in  respect  to  its 
capital  is  private,  yet  it  was  created  to  accomplish  ob- 
jects in  which  the  public  have  a  direct  interest,  and 
its  authority  to  hold  lands  was  conferred  that  these 
objects  might  be  worked  out.  They  shall  not  be  balked, 
therefore,  by  either  the  act  of  the  company  itself,  or 
of  its  creditors.  For  the  sake  of  the  public,  whatever 
is  essential  to  the  corporate  franchises  shall  be  re- 
tained by  the  corporation.  The  only  remedy  which  the 
law  allows  to  creditors  against  property  so  held  is  se- 
questration." ^"*"  Such  was  the  law  of  Pennsylvania,, 
until  the  statute  of  1870  authorized  the  levy  of  execu- 
tion upon  the  franchises  and  property  of  corpora- 
tions.^" / 

The  theory  of  the  exemption  of  the  property  of  quasi- 
public  corporations  from  levy  and  sale  under  execu- 
tion is  that,  if  such  levy  and  sale  were  permitted,  the 
corporation  would  no  longer  be  able  to  discharge  its 
duties  to  the  public.  When  this  reason  ceases,  the 
rule  becomes  inapplicable.  Hence,  if  a  cor|)oration 
has  property  which  is  not  necessary  to  the  exercise  of 

840  riymonth  R.  R.  v.  Colwell.  39  Pa.  St.  387,  80  Am.  Dec.  526; 
see,  also.  Richardson  v.  Sibley,  11  Allen.  (>,^,  S7  Am.  Dec.  700. 

841  Thiladelphia  &  B,  C.  R.  R.  Co.'s  Appeal,  70  Ta.  St.  355. 


549  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.      S  126» 

its  franchises  and  the  discharge  of  its  duties,  or  if, 
though  such  property  is  necessary,  it  has  ceased  to  be 
used,  because  the  corporation  has  ceased  to  exercise 
its  corporate  franchises,  the  property  becomes  subject 
to  execution."*^ 

In  some  of  the  states,  statutes  have  been  enacted 
modifying  the  common-law  rule  by  making  the  prop- 
erly of  the  corporations  therein  mentioned  subject  to 
execution,  though  the  franchises  possessed,  and  the 
duties  performed  by  them,  are  of  a  public  or  quasi-pub- 
lic character.^^^  In  the  other  states  the  courts  have 
conceded  that  francliises  were  not  subject  to  execution, 
unless  made  so  by  statute;  but  they  have  hesitated  to 
declare  that  the  exemption  of  franchises  drew  with  it 
that  of  all  other  property  essential  to  their  enjoyment. 
That  the  involuntary  sale  of  such  property  might 
render  the  franchise  unproductive  of  the  public  good, 
and  to  some  extent  thwart  the  public  will,  and  impair 
the  public  welfare,  has  always  been  conceded.  On  the 
other  hand,  the  evil  of  withdrawing  a  vast  and  con- 
stantly increasing  amount  of  the  wealth  of  the  coun- 
try from  the  reach  of  creditors  has  been  regarded  as  so 
real  and  serious  that  the  courts  have  not  given  it  their 
countenance  or  support;  and  at  the  present  day  the 
property  of  corporations  other  than  municipal,  though 
essential  to  the  enjoyment  of  the  corporate  franchises, 
is  almost  universally  treated  as  subject  to  execution.^^ 

342  Gardiner  v.  Mobile  &  N.  R.  R.,  102  Ala.  635,  48  Am.  St.  Rep. 
84;  Benedict  v.  Ileinebers:,  43  Vt.  231. 

343  Simmons  v.  Worthington.  170  Mass.  203;  Williams  v.  East 
Wareham  etc.  R.  Co.,  171  Mass.  61. 

844  Risdon  I.  W.  V.  Citizens'  T.  Co..  122  Cal.  94,  68  Am.  St.  Rep. 
2.0 ;  State  v.  Rives.  5  Ired.  306;  Arthur  v.  C.  &  R.  R.  Bank,  9  Smedes 
&  M.  431.  48  Am.  Dec.  719:  Coe  v.  C.  P.  &  I.  R.  R..  10  Ohio  St.  372, 
75  Am.   Dec.  51S;  Coe  v.  Peacock,  14  Ohio  St.   187;   R.   R.  Co.  v. 


§  126b     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  55» 

*^Tlie  idea  that  property,  either  real  or  j^ersonal,  may 
become  a  mere  incident  to  a  franchise,  so  that  the  fran- 
chise and  property  shall  constitute  an  entire  thing,  i» 
not  found  in  any  of  the  books  of  the  common  law,  so 
far  as  we  are  aware.  The  right  to  a  ferry  is  such  a 
franchise,  and  the  boats  required  for  the  transporta- 
tion of  passengers  and  their  property  are  entirely  in- 
dispensable for  the  discharge  of  the  public  duties  of 
the  owner;  yet  we  have  found  no  instance  in  which  it 
has  been  claimed  that  such  boats  were  exempt  from 
seizure  for  the  owner's  debts."  ^^° 

§  126  b.  Property  of  insolvent  Corporations.— The 
property  of  an  insolvent  corporation  is  ordinarily  sub- 
ject to  execution  in  the  same  manner,  and  to  the  same 
extent,  as  that  of  natural  persons,  with  exceptions 
referred  to  in  the  preceding  section.^^  If  a  corpora- 
tion, however,  has  become  insolvent,  and  especially  if 
it  is  clear  that  it  intends  to,  or  must,  discontinue  its 
business,  its  assets  have  often  been  spoken  of  as  a  trust 
fund  for  the  benefit  of  its  creditors,  and  it  has  hence 
been  held  that  all  creditors  have  equal  rights  to  share 
in  such  fund  or  assets,  and  that  the  corporation  has, 
therefore,  no  power  to  make  any  disposition  of  them 
which  will  prefer  one  creditor  to  another,  or  which  may 
enable  one  to  receive  full  payment  while  another  may 
remain  without  redress,  except  such  remedy  as  may  be 
allowed  him  in  an  action  against  the  shareholders.**'' 

James,  6  "Wall.  T.jO;  Stewart  v.  Jones,  40  Mo.  140;  Ludlow  v.  C.  L. 
R.  R..  1  Flip.  25. 

345  B.  C.  &  IM.  R.  R.  V.  Gilmore,  37  N.  II.  410.  72  Am.  Dec.  33fi; 
Lathrop  v.  Miadleton,  2.3  Cal.  257,  83  Am.  Dec.  112. 

346  Reynolds  v.  Reynolds  L.  Co.,  169  Pa.  St.  U2G,  47  Am.  St.  Rep. 
935;  Guarantee  Co.  v.  First  N.  B..  95  ta.  480. 

34T  T.arrabee  v.  Franklin  Bank,  114  Mo.  .592,  .35  Am.  St.  Rep.  771: 
Currie  v.  Bowman,  25  Or.  304;  Sabin  v.  Columbia  F.  Co..  25  Or.  15. 


551  PERSONAL  I'ROrEUTY  SUBJECT  TO  EXELL'TION.      §  1261> 

Xotwithstanding  some  recent  accessions  to  the  ranks 
of  the  defenders  of  the  trust  fund  theory,  we  believe 
the  weight  of  authority  still  favors  the  proposition  that 
a  corporation  may  make  preferences  in  favor  of  its 
creditors  to  the  same  extent  as  a  natural  person,  and, 
at  all  events,  that  there  can  be  no  doubt  of  the  right  to 
make  such  preferences  as  long  as  the  corporation  is 
what  may  be  called  a  going  concern,  or,  in  other  words, 
is  proceeding  with  its  business  and  has  not,  in  effect, 
placed  its  assets  in  the  hands  of  persons  who  must,  in 
contemplation  of  law,  be  regarded  as  trustees,  having 
no  other  duty  to  perform  than  that  of  distributing  the 
property  among  the  creditors  and  others  who  may  be 
found  entitled  thereto.^^**  Where,  however,  the  rule 
prevails  that  a  corporation  which  is  insolvent,  or  in 
contemplation  of  insolvency,  has  no  right  to  prefer  one 
of  its  creditors  to  another,  this  rule  must  be  applica- 
ble to  creditors,  proceeding  to  judgment  and  execution 
at  the  instance  of,  or  by  the  connivance  with,  the  of- 
ficers or  managers  of  the  corporation,  for  what  they 
are  not  permitted  to  do  directly  they  cannot  be  al- 
lowed to  accomplish  by  indirection  or  collusion.^^'-*    In 

42  Am.  St.  Hop.  75G;  Lyons-Tliomas  H.  Co.  v.  Terry  S.  Co.,  S8  Tex. 
143;  Fowler  v.  Bell,  90  Tex.  150,  59  Am.  St.  Rep.  788;  Conover  v. 
Hull,  10  Wash.  G73,  45  Am.  St.  Rep.  810. 

»*8  0'Bear  J.  Co.  v.  Volfer,  106  Ala.  205,  54  Am.  St.  Rep.  31;  Al- 
bany etc.  Co.  V.  Southern  A.  Works,  76  Ga.  135.  2  Am.  St.  Rep.  20; 
First  N.  B.  v.  Dovetail  B.  &  G.  Co.  143  Ind.  550,  52  Am.  St.  Rep. 
435;  Rollins  v.  Shaver  U.  Co.,  80  Iowa,  380.  20  Am.  St.  Rep. 
427;  Warfiold  v.  Marshall  C.  C.  Co.,  72  Iowa,  606.  2  Am.  St.  Rep. 
2(«;  Wortheu  v.  Griffiths.  59  Ark.  502,  43  Am.  St.  Rep.  50; 
Schufeklt  V.  Smith.  131  Mo.  280,  52  Am.  St.  Rep.  628;  Trades- 
man P.  Co.  V.  Knoxville  C.  Co.,  95  Tenn.  634.  49  Am.  St.  Rep. 
043:  Sweeney  v.  Grape  S.  Co.,  30  W'.  Va.  448.  8  Am.  St.  Rep. 
88;  note  to  Conover  v.  Hull,  45  Am.  St.  Rep.  826-835;  Fogs;  v.  Blali, 
1.33  U.  S.  534:  Hawkins  v.  Glenn.  131  IT.  S.  .119:  IloUins  v.  Briertield 
etc.  Co..  ir,0  U.  S.  3,84. 

«<9  Conover  v.  Hull,  10  ^Yash.  673,  45  Am.  St.  Rep.  SIO. 


§  1-2GI)  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     552 

the  absence  of  fraud  or  collusion  between  the  man- 
agers of  a  corporation  and  an  execution  creditor  for  the 
purpose  of  giving  a  x>reference  to  him,  it  is  doubtful 
whether  in  any  case  the  property  of  a  private  corpora- 
tion can  be  regarded  as  not  subject  to  execution  when 
not  charged  with  a  public  trust.  lu  Texas,  it  has  been 
held  that,  after  a  corporation  had  become  insolvent, 
abandoned  the  undertaking  for  which  it  was  incorpo- 
rated, and  placed  its  assets  in  the  hands  of  its  direct- 
ors as  trustees  for  distribution  ratably  among  its 
several  creditors,  such  assets  were  not  subject  to  be 
seized  by  the  sheriff  under  a  writ  against  such  corpo- 
ration. This  decision  is  founded  upon  the  assumption 
that  the  statutes  of  the  state,  as  construed  by  its  courts, 
converted  such  directors  into  trustees  for  creditors,  and 
that  the  circumstances  involved  in  this  case  practi- 
cally amounted  to  a  general  assignment  by  the  corpo- 
ration to  the  trustees  for  the  benefit  of  its  creditors.  It 
further  appeared,  however,  in  this  case,  that  the  cred- 
itor seeking  to  subject  the  property  to  attachment  had 
already  accepted  a  dividend  from  the  trustees,  and 
that  he  was  thereby  estopped  from  controverting  the 
validity  of  the  intended  assignment  to  them.^^®  Un- 
der the  exceptional  circumstances  disclosed,  this  case 
Avas  probably  correctly  decided,  but,  in  the  absence  of 
such  circumstances,  we  think  there  can  be  no  doubt 
that  the  insolvency  of  a  corporation,  however  great,  or 
however  well  known  or  ascertained,  cannot  prevent  its 
personal  property  from  being  subject  to  an  execution 
n gainst  it.^®^  Even  where  a  statute  was  in  force,  pro- 
hibiting any  insolvent  corporation  or  any  of  its  officers 

350  Wright  V.  Euless,  12  Tex.  Civ.  App.  136. 

351  Jones  V.  Bank  of  Leadville,  10  Colo.  404;  Broene  v.  Merchants' 
&  M.  Bank,  11  Colo.  97;  Arnold  v.  Weimer,  40  Neb.  216. 


553  TERSONAL  PROPERTY  SURJElT  TO  EXECUTION.      §  12i;b 

from  a.s.si<>ning  or  disposing  of  its  property  in  payment 
of  its  debts,  and  also  prohibiting  any  assignment  or 
transfer  in  contemplation  of  insolvency,  it  was  held 
that  neither  the  corporation  nor  its  officers  were  under 
any  duty  to  take  active  measures  to  procure  a  disposi- 
tion of  its  property,  without  preferences  among  all  its 
creditors,  and  that,  if  an  action  were  commenced 
against  the  corporation  upon  a  valid  obligation,  en- 
tered into  by  it,  neither  it  nor  its  directors  were  re- 
quired to  take  any  hostile  proceedings,  and  that  a  cred- 
itor, by  his  vigilance  in  obtaining  judgment  and  levy- 
ing an  execution,  became  entitled  to  the  fruits  thereof, 
and,  hence,  substantially,  that  the  corporation  might, 
under  these  circumstances,  by  its  inaction,  suffer  a  pref- 
erence in  favor  of  one  of  its  creditors  against  which  the 
others  could  obtain  no  redress.^"'^^ 

In  those  states  in  which  an  insolvent  corporation 
has  the  right  to  prefer  one  creditor  to  another,  it  may 
execute  a  judgment  note  in  consideration  of  pre-exist- 
ing indebtedness,  upon  which  a  judgment  may  at  once 
be  entered,  and  the  property  of  the  corporation  levied 
upon  thereunder  and  sold;  and  such  levy  and  sale  can- 
not be  avoided  by  another  judgment  creditor  upon  a 
bill  against  the  corporation  and  its  directors,  alleging 
fraud  in  giving  the  judgment  note  while  the  corpora- 
tion was  known  to  be  insolvent,  for  the  purpose  of  au- 
thorizing the  sale  of  its  property  under  legal  process, 
nor  is  it  material  that  the  debt  for  which  the  judg- 
ment note  was  given  was  guaranteed  by  some  or  all 
of  the  directors.^^^ 

«52  Varnura  v.   Hart,  119  N.  Y.  101. 

853  Rockford  W.  G.  Co.  v.  Staudaid  G,  &  M.  Co.,  175  111.  SO,  67 
Am.  St.  Kep.  205. 


§  127       TERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  554 

§  127.  Property  of  Married  Women  for  Debts  of  Hus- 
band.— Under  the  provisions  of  the  common  law,  thf 
giving  of  a  Avoman  in  marriage,  unless  restricted  by 
antenuptial  agreements,  operated  as  a  gift  of  all  her 
personal  estate,  then  actually  or  constructively  in  her 
possession,  and  of  all  personal  estate  which  might 
thereafter,  during  coverture,  be  acquired  by  her,  and 
reduced  into  her  possession  or  that  of  her  husband. 
And  her  chattels  were  deemed,  in  law,  to  be  in  her 
possession,  for  the  purpose  of  transferring  title  to  the 
husband,  by  mere  force  of  his  marital  rights,  in  all 
cases  where  such  chattels  were  not  held  adversely  to 
her.  It  w^as  of  no  consequence  that  they  were  held  by 
her  agent  or  bailee,  or  by  any  other  person  for  her  bene- 
fit. Where  the  rules  of  the  common  law  still  prevail, 
it  is  evident  that  what  might,  according  to  justice,  or 
according  to  the  popular  acceptation  of  the  term,  be 
called  the  wife's  chattels,  are,  in  contemplation  of  the 
law%  chattels  in  w^hich  she  has  no  interest,  over  which 
she  can  exercise  no  control,  and  for  the  interference 
with  which  she  has  no  legal  cause  for  complaint.  They 
are  the  property  of  her  husband  as  absolutely  as 
though  possessed  by  him  anteriorly  to  his  marriage.^^^ 

354  As  to  the  vesting  of  wife's  chattels  in  the  husband  by  virtue  of 
marriage,  see  Bishop  on  Married  Women,  sees.  64.  .52;  Clapp  v 
Stoughton,  10  ritk.  462;  Sheriff  v.  Buckner,  1  Litt.  126;  Gwyun  v. 
ITamilton,  29  Ala.  233;  Martin  v.  Paugue,  4  B.  Mon.  524;  Washbin-ri 
V.  Ilale,  10  Pick.  429;  Carleton  v.  Lovejoy,  54  Me.  445;  Jordan  v. 
.Jordan,  52  Me.  320;  Hopper  v.  McWHiorter,  18  Ala.  229;  Bell  v.  Bell. 
1  Kelly.  637;  Byrd  v.  Ward,  4  ^McCord,  228;  Cram  v.  Dudley,  28 
N.  H.  537;  Pope  v.  Tucker,  23  Ga.  484;  Hill  v.  W^-nn,  4  W.  Ya.  453; 
Ewing  V.  Handley,  4  Litt.  346,  14  Am.  Dec.  140;  ^Miller  v.  Bingham. 
1  Ired.  Eq.  423,  36  Am.  Dec.  58;  Daniel  v.  Daniel.  2  Rich.  Eq.  115, 
44  Am.  Dec.  244;  Burleigh  v.  Coffin,  22  N.  H.  118,  53  Am.  Dec.  236; 
Potts  V.  Gooch,  97  Mo.  88,  10  Am.  St.  Rep.  286.  The  possession  of 
the  wife  can  never  become  adverse  to  the  husband,  tliough  he  has 
abandoned  her  and  lived  in  adultery  with  another.  Bell  v.  Bell's 
Adm'r,  37  Ala.  5.30,  79  Am.  Dec.  73. 


555  TERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  127 

They  are  not  to  be  thought  of  as  her  property;  but  may 
be  seized  and  sold  under  execution  against  him,  and 
applied  to  the  payment  of  his  debls.^^"'  Choses  in  ac- 
tion were  not  regarded  as  being  in  the  possession  either 
of  the  husband  or  the  wife.  The  husband  may,  by  col- 
lection, reduce  them  to  his  possession  and  make  the 
proceeds  his  personal  estate.  If  he  does  not  do  so  dur- 
ing coverture,  they  survive  to  the  wife,  and  do  not  pass 
to  his  administrator.'*^**  But  in  some  of  the  states  it 
has  been  held  that  the  husband's  creditors  may  reach 
the  wife's  choses  in  action  before  he  reduces  them  to 
possession.""''  The  view,  however,  which  is  best  sus- 
tained by  reason  and  by  authority  is  that,  to  entitle 
the  husband  to  the  benefit  of  the  Avife's  choses  in  ac- 
tion, he  must  at  least  make  some  attempt  to  appro- 
priate them  to  his  own  use,  or,  by  means  of  suit,  to 
convert  them  into  things  in  possession;  that,  in  the 
absence  of  such  attempt,  the  choses  continue  to  be  the 
property  of  the  wife;  that  no  person  but  the  husband 
is  entitled  to  exercise  his  right  of  depriving  her  of  such 
property;  that  a  writ  against  the  husband  cannot  reach 
the  property,  because  it  is  not  his,  and  cannot  reach 
the  right  of  reducing  the  property  into  possession,  be- 
cause that  is  a  personal  privilege,  and  cannot  be  trans- 

355  Cunningham  v.  Gray,  20  Mo.  170;  Apple  v,  Ganong,  47  Miss. 
189;  Tally  v.  Thompson,  20  Mo.  277;  Barbee  v.  Wimer,  27  Mo.  140; 
Pawley  v.  Vogel,  42  Mo.  291. 

356  Bishop  on  Married  Women,  sec.  65;  Chappelle  v.  Oliiey,  1 
Saw.  401. 

357  Wheeler  v.  Bowen,  20  Pick.  5G3;  Holbrook  v.  Waters.  19  Pick. 
354;  State  v.  Krebs.  6  Har.  &  J.  31;  Peacock  v.  Pembroke.  4  Md. 
280;  Strong  v.  Smith,  1  Met.  476;  Alexander  v.  Crittenden.  4  Allen, 
342;  iHild  v.  Geiger,  2  Gratt.  98;  Vance  v.  :McLaughlin.  S  Gratt.  289; 
Hockaday  v.  Sallee,  26  Mo.  219;  Johnson  v.  Fleetwood.  1  Harr. 
(Del.)  442;  Babb  v.  Elliott,  4  Harr.  (Del.)  466;  Bryan  v.  Rooks,  25 
Ga.  622,  71  Am.  Dec.  194. 


S  127       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  556 

ferred."^**    ''The  common  law  of  England  identifies  the 
wife  so  entirely  with  the  husband  as  scarcely  to  tol- 
erate their  separate  existence  while  they  live  together. 
She  cannot  acquire  personal  property  by  a  direct  con- 
veyance to  herself.    ITer  interest  is,  by  act  of  law,  al- 
most in  every  instance  transferred   to    her    husband. 
But  this  rule  does  not  apply  to    personal    estate    to 
which  a  female  is  entitled  before  marriage,  and  which 
has  not  been  reduced  to  possession.    This  remains  her 
property,  and  does  not  vest  in  the  husband  by  the  mar- 
riage.   The  marital  right  does  not  extend  to  the  prop- 
erty while  a  chose  in  action,  but  enables  the  husband 
to  reduce  it  to  possession,  and  thereby  acquire  it.    The 
property  becomes  his,  not  upon  the  marriage,  but  upon 
the  fact  of  his  obtaining  possession.    The  propr-rty  does 
not  become  his,  nor  is  it  subject  to  the  liabilities  which 
attach  to  that  which  is  his,  until  it  shall  be  reduced  to 
possession.     Till  then  his  creditors  have  no  claim  to 
it."  '"^^^    Therefore,  if  a  husband  has  not  reduced  his 

858  Marston  v.  Carter,  12  N.  H.  159;  Poor  v.  Hazleton,  15  N.  H. 
504;  Wheeler  v.  Moore,  13  N.  H.  478;  Smithhurst  v.  Thurston, 
Brightly,  127;  Skinner's  Appeal,  5  Pa.  St.  2G2;  Denison  v.  Nigh,  2 
Watts,  90;  Robinson  v.  Woelpper,  1  Whart.  179,  29  Am.  Dec.  44; 
Ryan  v.  Bull,  3  Strob.  Eq.  SO;  Durr  v.  Bowyer,  2  McCord  Ch.  374; 
Perryclear  v.  Jacobs,  2  Hill  Ch.  509;  Short  v.  Moore,  10  Vt.  446; 
Probate  Court  v.  Niles,  32  Vt.  775;  Arrington  v.  Screws,  9  Ired.  42, 
49  Am.  Dec.  408;  Godbold  v.  Bass,  12  Rich.  202;  Pressley  v.  Mc- 
Donald, 1  Rich.  27;  Bennett  v.  Dillingham,  2  Dana,  437;  Kilby  v. 
Haggin,  3  J.  .1.  Marsh.  208;  Sayre  v.  Flournoy,  3  Kelly,  541;  Flory 
V.  Beclier,  2  Pa.  St.  470,  45  Am.  Dec.  610;  Scrutton  v.  Pattillo.  L.  R. 
19  Eq.  369;  12  Moalc,  803;  Proctor  v.  Ferebee,  1  Ired.  Eq.  143,  36 
Am.  Dec.  34;  Kaufman  v.  Crawford,  9  Watts  &  S.  131,  42  Am.  Dec. 
323;  Widgery  v.  Tepper,  L.  R.  5  Ch.  D.  516;  22  Moali,  261;  Siocomb 
V.  Breedlove,  8  La.  143,  28  Am.  Dec.  13.1;  Miller  v.  Miller,  1  J.  J. 
Marsh.  169,  19  Am.  Dec.  59;  Scott  v.  HicliS,  2  Sneed,  192,  62  Am. 
Dec.  458. 

359  Gallego  V.  Gallego,  2  Brock.  286;  Harris  v.  Taylor,  3  Sneed, 
536,  67  Am.  Dec.  576. 


557  PERSONAL  PROPERTY  .SUBJECT  TO  EXECUTION.        §  127 

wife's  Glioses  in  action  to  possession  before  a  statute 
is  enacted,  vesting  them  in  her  as  lier  separate  estate, 
they  cannot  thereafter  be  reduced  to  his  possession  by 
the  husband,  or  reached  by  any  proceeding  prosecuted 
by  his  creditors,  for  the  purpose  of  applying  them  to  the 
satisfaction  of  his  obligations.^"** 

Mere  manual  possession  alone  is  not  sufficient.  It 
must  be  a  reduction  to  possession  with  intent  to  assert 
the  husband's  marital  right.  Hence,  where  he  intends 
the  property  to  remain  his  wife's,  his  intent  is  not  frus- 
trated by  his  becoming  its  custodian,^"^  nor  by  hold- 
ing it  as  trustee,'^^"  or  as  executor. ^^  There  must  be  a 
union  of  act  and  intent.  Therefore,  the  intent  without 
the  act  is  as  ineffective  as  the  act  without  the  in- 
tent.^*^  A  wife's  chose  in  action  is  reduced  to  the  pos- 
session of  her  husband,  and  its  proceeds  become  his 
property,  when  he  receives  payment  thereof  with  in- 
tent to  appropriate  the  proceeds  to  his  own  use,^"^  or 
accepts  in  its  stead  a  bond  payable  to  himself, ^^  or 
executes  a  transfer  thereof,  or  recovers  judgment  there- 
on, in  his  own  name.^**'^ 

With  respect  to  the  effect  of  a  transfer  for  value, 
made  by  a  husband  of  his  wife's  chose  in  action,  not 
otherwise  reduced  to  his  possession,  the  authorities  dis- 

««o  Trapnell  v.  Conldyn,  37  W.  Va.  242,  38  Am.  St.  Rep.  30. 

««i  Hind's  Estate,  5  Whart.  138,  34  Am.  Dec.  542:  Holmes  v. 
Holmes,  28  Vt.  67.5;  McDowell  v.  Potter,  8  Pa.  St.  192;  Barber  v. 
Slade,  30  Vt.  191,  73  Am.  Dec.  299. 

862  Jackson  v.  McAliley,  1  Spears  Eq.  303,  40  Am.  Dec.  620;  Resor 
V.  Resor,  9  Ind.  347;  State  v.  Reigart,  1  Gill,  1.  39  Am.  Dec.  628. 

863  Walker  v.  Walker,  25  Mo.  307;  Paige  v.  Sessions.  4  How.  122. 

864  Brown  v.  Bokee,  53   Md.   155. 

865  Thomas  v.  Chicago,  55  111.  403;  Lowery  v.  Craig,  30  Miss.  19; 
Plummer  v.  .Tarman.  44  Md.  632. 

366  Stewart's  Appeal.  3  Watts  &  S.  476. 

867  Alexander  v.  Crittenden,  4  Allen.  342;  Probate  Court  v.  Niles, 
32  Vt.  775. 


§  127       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  558 

agree,  some  asserting  that  it  operates  to  vest  in  the 
assignee  an  indefeasible  title,^*^**  and  others  contend- 
ing that  the  assignee  obtains  nothing  beyond  what  the 
assignor  held,  viz.,  the  right  to  reduce  the  chose  into 
possession,  and  that,  if  such  right  is  not  exercised  dur- 
ing the  husband's  life,  the  chose  survives  to  the  wife.^"^ 
The  recovery  of  judgment  on  a  wife's  chose  in  action, 
where  the  husband,  instead  of  suing  alone,  merely  joins 
with  her  as  a  party  plaintiff,  does  not  vest  it  in  him.^''** 
Concerning  post-nuptial  choses  in  action,  there  ex- 
ists the  same  divergence  of  judicial  opinion  as  in  other 
cases.    So  far  as  the  earnings   of  the  wife   are  con- 
cerned, they  doubtless  belong  to  the  husband,  unless  he 
has  done  something  to  estop    himself   from  claiming 
them.^'^^    Human  beings,  less  heartless  and  more  dis- 
criminating than  the  common  law,  may,  however,  rec- 
ognize the  services  and  kind  offices  of  a  married  woman, 
and  express  such  recognition  in  the  form  of  a  chose  in 
action,  payable  to  her,  or  such  chose  may  be  taken  in 
her  name  in  payment  of  portions  of  her  separate  es- 
ses Siter's  Case,  4    Rawle,  4G8;  Tritt  v.  Colwell,  31    Pa.  St.  228; 
Needles  v.  Needles,  7  Ohio  St.  432,  70  Am.  Dec.  85;  Tuttle  v.  Fowler, 
22  Conn.  58;  Ware  v.  Ware,  28  Gratt.  G70;  Manion's  Adm'r  v.  Tits- 
worth,  18  B.  Mon.  582;  Smith  v.  Atwood.  14  Ga.  402. 

369  state  V.  Robertson.  5  Harr.  (Del.)  201;  George  v.  Goldsby,  23 
Ala.  32G;  Bryan  v.  Spruill,  4  Jones  Eq.  27;  O'Connor  v.  Harris,  81 
N.  C.  279. 

370  McDowl  V.  Charles.  6  Johns.  Ch.  132;  Pierson  v.  Smith,  9  Ohio 
St.  554,  75  Am.  Dec.  48G;  Perry  v.  Wheelock,  49  Vt.  63;  Pike  v.  Col- 
lins, 33  Me.  38. 

871  Prescott  V.  Brown,  29  ^le.  305,  39  Am.  Dec.  623;  Norcross  v. 
Rodgers,  30  Vt.  588,  73  Am.  Dec.  323;  Matter  of  Callister,  153  N.  Y. 
294,  60  Am.  St.  Rep.  620;  Evans  v.  W' elborn,  74  Tex.  530,  15  Am.  St. 
Rep.  858;  Abbott  v.  Wetherby,  6  Wash.  507,  36  Am.  St.  Rep.  176: 
Bailey  v.  Gardner,  31  W.  Va.  94,  13  Am.  St.  Rep.  847.  In  many  of 
the  states,  however,  the  earnings  of  a  wife  are  expressly  exempted 
from  an  execution  in  favor  of  her  husband.  Wallace  v.  Mason.  100 
Ky.  560. 


'>n9  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  127 

late  sold  by  her.  Doubtless,  there  are  courts  which 
regard  such  chose,  in  either  case,  as  the  absolute  prop- 
erty of  the  husband,  and  consequently  as  subject  to 
■execution  against  hini.^''^  On  the  other  hand,  choses 
in  action  taken  in  the  name  of  a  wife,  of  which  she  is 
the  meritorious  cause,  and  possibly  those  taken  in  her 
name  with  the  assent  of  her  husband,  of  which  she  is 
not  the  meritorious  cause,  have  been  treated  as  of  the 
same  effect  as  her  antenuptial  choses.^'^^ 

Where  creditors  of  the  husband  find  it  necessary  to 
ask  the  aid  of  equity  to  enable  them  to  reach  choses  in 
action,  and  appropriate  them  to  the  satisfaction  of  the 
husband's  debts,  it  is  very  clear  that  the  relief  sought 
will  not  be  granted  unless  adequate  provision  first  be 
made  for  the  support  of  the  wife  and  her  children.'"'"* 
It  will  be  seen  that  the  exemption  of  the  wife's  choses 
in  action  from  execution  or  attachment  against  her  hus- 
band will  only  be  maintained  when  the  circumstances 
are  such  that  they  must  still  be  regarded  as  her  prop- 
erty. The  reason  why  a  sheriff  may,  ordinarily,  under 
a  writ  against  a  married  man,  seize  the  personal  prop- 
erty which  belonged  to  the  wife  at  her  marriage,  is  not 
because  the  wife's  property  is  liable  to  be  taken  in  sat- 

3T2  Stevens  v.  Beals.  10  Cush.  291,  57  Am.  Dec.  lOS;  Common- 
Tvealth  V.  INIanley,  12  Pick.  173;  Krebs  v.  O'Grady,  23  AJa.  726,  58 
Am.  Dec.  312;  Peacock  v.  Pembroke,  4  Md.  280. 

s-sDickinson  v.  Davis,  43  N.  IT.  647,  80  Am.  Dee.  202;  Earlier  v. 
Slade.  30  Vt.  191,  73  Am.  Dec.  209;  Boozer  v.  Addison.  2  Rich.  Eq. 
273.  4G  Am.  Dec.  43,  and  note;  Reed  v.  Blaisdell,  16  N.  H.  194.  41 
Am.  Deo.  722. 

874  Browning  v.  Iloadley,  2  Rob.  (Va.)  340,  40  Am.  Dec.  7.'»o;  Wiles 
V.  Wiles.  3  Md.  1.  .')G  Am.  Dec.  733;  Daniel  v.  Daniel.  2  Rich.  Eq. 
115.  44  Am.  Dec.  244;  Wilks  v.  Fitzpatrick,  1  Iluniph.  54,  34  Am. 
Dec.  618:  Duvall  v.  Farmers'  Bank.  4  Gill  &  J.  282.  23  Am.  Dec. 
558;  Oswald  v.  Hoover,  43  Md.  368;  Van  Duzer  v.  Van  Duzer.  6 
Paisre.  366.  r.1  Am.  Doc.  257;  X.-ipier  v.  Ilownrd.  3  Kelly.  102:  Hays 
T.  Blanks,  7  B.  Mon.  347;  Bowling  v.  Bowling,  0  B.  Mon.  31. 


§  127a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  5Ga 

isfaction  of  judgments  against  her  husband,  but  be- 
cause  the  property  seized  upon  belongs,  in  contempla- 
tion of  law,  to  the  defendant  in  execution.  But  prop- 
erty which,  notwithstanding  the  marriage,  is  recog- 
nized by  law  as  constituting  the  separate  estate  of  the 
wife,  is  no  more  liable  to  be  taken  on  an  execution 
against  her  husband  than  it  is  to  be  taken  under  a  writ 
against  some  other  person.  Whatever  interest  in  the 
property  the  laAv  concedes  to  the  wife,  it  will  protect 
from  her  husband's  creditors;  ^'^^  and  in  some  of  the 
states,  statutes  have  been  enacted  which,  without 
changing  the  wife's  legal  title  to  personal  estate, 
owned  by  her  before  marriage  or  afterward  acquired, 
have  exempted  su.ch  property  from  execution  against 
the  husband.^'^*^  In  other  states,  the  wife  is  required  to 
file  for  record  an  inventory  of  her  separate  personal 
estate.  If  she  omits  to  do  this,  it  may  be  taken  in  exe- 
cution to  satisfy  her  husband's  debts.^'^'' 

^  127  a.    Property  Expressly  or  Impliedly  Given  by  a 

Husband  to  his  V\/ife. — A  direct  gift  of  property  from  a 
husband  to  his  wife  is  subject  to  assault  upon  the  same 
ground  as  a  gift  by  him  to  a  stranger,  and,  hence,  can- 
not prevent  property  so  given  from  being  taken  under 
an  execution  against  him,  where  the  gift  is  m.nde  ac- 

876  Unger  v.  Price,  9  Md.  552;  Logan  v.  McGill,  8  Md.  461;  Barnard 
V.  Mix,  35  Conn.  223;  Knapp  v.  Smith,  27  N.  Y.  277;  Buckley  v. 
Wells,  33  N.  Y.  518;  Gage  v.  Dauchy,  34  N.  Y.  293;  Johnson  v.  Chap- 
man, 35  Conn.  550;  .Tones  v.  JEini\  Ins.  Co.,  14  Conn.  .501;  Selden  v. 
Merchants"  Bank,  69  Pa.  St.  424:  Van  Etten  v.  Currier,  3  Keyes, 
329;  Kluender  v.  Lynch,  4  Keyes,  301;  TTale  v.  Coe,  49  Mo.  181; 
Saunders  v.  Garrett,  33  Ala.  454. 

378  Harvey  v.  Wickham,  23  Mo.  112;  W'hite  v.  Dorris,  .35  Mo.  181; 
Pawley  v.  Vogel,  42  Mo.  291;  Hale  v.  Coe.  49  Mo.  181;  Furrow  v. 
Chapin,  13  Kan.  107. 

3'7  AVilliams  v.  Brown,  28  Iowa,  247:  Presuall  v.  Herbert,  34  lowa^ 
539;  Stewart  v.  Bishop,  33  Iowa,  584. 


561  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.      §  l-27a 

tually  or  presumptively  for  the  purpose  of  defrauding 
his  creditors."^**  The  classes  of  gifts  which  we  wish 
here  to  more  particularly  consider  are  those  arisiug 
from  a  contract  between  a  husband  and  a  wife,  actual 
or  implied,  by  which  she  is  permitted  to  engage  in  busi- 
ness, or  pei'form  services  for  others  under  an  express 
or  inferred  agreement  that  she  shall  have,  as  her  sepa- 
rate estate,  the  proceeds  of  such  business  or  compensa- 
tion for  such  services.  The  validity  of  contracts  to 
the  effect  that  a  wife  shall  be  compensated  for  her  ser- 
vices, or  shall  have  the  proceeds  of  a  business  con- 
ducted by  hvv,  may  be  questioned  in  a  controversy  with 
creditors,  who  either  claim  that  their  interests  require 
the  contract  to  be  observed,  or,  on  the  other  hand,  that 
it  amounts  to  a  gift  from  the  husband  to  the  wife  which 
cannot  be  sustained  as  against  them.  In  the  first  of 
these  classes  of  cases  are  involved  business  transac- 
tions of  constantly  increasing  magnitude,  for  which 
the  law  has  not,  up  to  the  present  time,  made  any  very 
careful  provision.  We  refer  to  those  instances  in  which 
mercantile  and  other  transactions  are  conducted  by  and 
in  the  name  of  a  married  woman,  with  the  assent,  or, 
at  least,  without  the  dissent  of  her  husband,  and  she 
acquires  property  and  incurs  obligations  in  the  trans- 
action of  such  business,  and,  when  her  creditors  seek 
to  enforce  such  obligations,  they  are  met  by  the  claim 
that  the  property  acquired  does  not  belong  tp  her,  but 
to  her  husband,  and,  therefore,  is  not  subject  to  any 
writ  against  her.  We  have  heretofore  considered  this 
question,  and  reached  the  conclusion  that  under  these 
circumstances  the  husband  must  either  be  regarded  as 

P7S  Jones  V.  Rome  G.  Co..  00  Ga.  103;  Laird  v.  Davidson,  124  Ind. 
412;  Talcott  v.  Field,  34  Neb.  Gil,  33  Am.  St.  Rep.  662. 
Vou  I.— 36 


§  127a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  502 

having  made  a  gift  of  property  and  business  to  his 
wife,  or,  at  least,  as  estopped  from  denying  that  the 
property  and  business  were  hers,  where  such  denial 
would  prejudice  the  rights  of  creditors  whose  claims 
have  accrued  to  them  in  dealing  with  her  respecting 
such  property  and  business,  upon  the  assumption  that 
they  were  hers,  and  that  she  was  entitled  to  incur  ob- 
ligations, payment  of  which  might  be  enforced  there- 
from.^'^ 

Generally,  however,  the  attack  upon  a  transaction  by 
which  a  wife  has  been  paid  something  for  her  personal 
services,  or  has  invested  their  proceeds  in  property,  or 
property  has  been  conveyed  to  her  by  her  husband  in 
consideration  of  moneys  due  for  such  services,  comes 
from  his  creditors,  who  contend  that  the  transaction  is 
ascheme  devised  for  the  purpose  of  defrauding  them, or, 
if  not  so  devised,  that  it  is  at  least  equivalent  to  a  gift 
which  the  husband,  under  the  circumstances,  could  not 
make  without  hindering,  delaying,  or  defrauding  them. 
If  the  services  performed  by  the  wife, and  for  which  her 
husband  agreed  to  pay  her,  were  in  the  nature  of  ordi- 
nary marital  or  household  duties,  of  course,  his  agree- 
ment to  pay  for  them  was  not  binding  upon  him,  be- 
cause without  consideration,  and  his  compliance  with  it 
must  be  deemed  a  mere  gift  to  his  wife,  not  sustain- 
able as  against  his  creditors,  except  under  the  same 
conditions  as  would  permit  the  sustaining  of  any  vol- 
untary transfer  by  him,  and,  therefore,  his  creditors 
have  the  right  to  any  property  received  from  him  in 
carrying  out  his  agreement  that  they  have  in  any  other 

8T9  Partridge  v.  Stockor,  36  A^t.  108,  84  Am.  Dec.  GG."i.  and  note, 
673-G7G;  Diefendorf  v.  Hopkins,  95  Cal.  343;  Cougbliu  v.  Ryan,  43 
Mo.  99,  97  Am.  Dec.  375. 


5C3  PERSONAL  PROPERTY  SUBJECT  TO  EXKC'UiloN.      §  127a 

property  given  by  him  to  her.'''*"  Nor  is  it  material 
that  the  services  were  not  rendered  directly  to  the  hus- 
band if  they  were  in  performance  of  duties  resting  upon 
him,  as,  for  instance,  in  the  caring  for,  and  nursing  of 
his  mother  in  illness  or  old  age,  he  expressly  agree* 
ing  to  pay  his  wife  therefor,  and  carrying  out  his  agree- 
ment by  conveying  property  to  her  in  good  faith  in  sat- 
isfaction of  his  contract  with  her."**^ 

If  creditors  can  lie  said  to  have  any  right  to  the  ser- 
Tices  of  their  debtors  wife,  such  right  is  surely  re- 
stricted to  services  of  the  ordinary  character,  and  if  she 
is  permitted  to  reap  the  fruits  of  extraordinary  ser- 
vices, though  such  fruits  are  paid  or  turned  over  to  her 
by  her  husband,  we  do  not  see  how  the  transaction  de- 
frauds or  hinders  his  creditors,  or  can  result  in  .preju- 
dice to  them.  We  are  aware  that  there  are  several 
cases  which  maintain  the  right  of  a  husband  to  all  ser- 
vices actually  rendered  ~by  his  wife,  and  in  which  relief 
has,  therefore,  been  granted  to  his  creditors  to  the  ex- 
tent of  setting  aside  any  conveyance  made  to  her, 
whether  by  her  husband  or  others,  though  the  consid- 
eration therefor  was  money  earned  by  her  after  her 
marriage,  in  the  doing  of  work  which  she  was  under 
no  obligation  to  perform,  as  where  she  assisted  her 
husband  in  his  business,^**'  or  washed,  or  cared  for  per- 
sons not  members  of  his  family,  or  took  in  boarders, 
under  an  agreement  with  her  husband,  whether  ex- 
press or  implied,  that  she  might  have  for  her  own  use, 

3S0  Stirtzer  v.  Kee,  146  III.  577;  Gable  v.  Columbus  etc.  Co..  140 
Ind.  563;  Michigan  etc.  Co.  v.  Chapin.  106  Mich.  384.  .58  Am.  St. 
Rep.  490;  Apple  v.  Ganony,  47  IMiss.  189;  Reynolds  v.  Robinson.  64 
N.  Y.  589;  Bucher  v.  Ream.  08  Pa.  St.  421;  Campbell  v.  Bowles.  30 
Gratt.  6o2;  Elliott  v.  Bentley,  17  V^'is.  591. 

381  Coleman  v.  Burr.  25  Ilun.  239.  93  X.  Y.  17,  45  Am.  Rop.  160. 

«82  Brittain  v.  Crowther,  54  Fed.  Rep.  295. 


S  127a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  564 

or  as  her  separate  estate,  the  proceeds  of  these  la- 
bors.^**^  This  proposition  appears  to  us  unreasonable. 
If,  as  the  result  of  representations  made  by  a  husband 
to  his  wife,  she  is  induced  to  embark  in  a  business  on 
her  own  account,  or  led  to  discharge  duties  obYiously 
not  devolving  upon  her  by  virtue  of  her  marital  rela- 
tions, under  his  promise  that  she  shall  have  the  pro- 
ceeds of  such  business,  or  the  compensation  resulting 
from  the  discharge  of  such  duties  for  her  own  use, 
nothing  is  thereby  taken  away  from  his  creditors,  and 
they  ought  not  to  be  entitled  to  compel  him  to  act  in 
bad  faith  to  the  extent  of  repudiating  his  contract  with 
his  wife,  nor  to  reclaim  from  her  property  which  ha& 
been  conveyed  to  her  in  satisfaction  of  such  agree- 
ment."**^ Of  course,  we  exclude  from  this  statement 
those  cases  in  which  the  attendant  circumstances  are 
such  as  to  convince  the  court  or  jury  that  the  alleged 
agreement  between  husband  and  wife  was  a  mere 
device  resorted  to  for  the  purpose  of  defrauding  hi» 
creditors. 

As  a  wife  may  manage  her  separate  estate,  and,  in 
so  doing,  may  have  agents  and  employes,  and  make 
valid  agreements  to  compensate  them  for  theirservices, 
there  seems  to  be  no  reason  why  she  may  not  employ 
her  husband  as  her  agent,  and  enter  into  a  valid  agree- 
ment with    him  fixing  the  amount  of   his  compensa- 

883Belford  v.  Crane.  16  N.  .T.  Eq.  205,  84  Am.  Dec.  15.5:  Cramer 
V.  Redford,  17  N.  J.  Eq.  307.  90  Am.  Dec.  594;  Blaeckinska  v. 
Howard  Mission.  130  N.  Y.  490;  Bailey  v.  Gardner,  31  W.  Va.  94,  1.? 
Am.  St.  Rep.  847. 

384  Gilbert  v.  Glenny,  75  la.  513;  Carse  v.  Reticker,  95  la.  25,  5S 
Am.  St.  Rep.  421;  McNaught  v.  Anderson.  78  Ga.  499.  6  Am.  St. 
Rep.  278;  Riley  v.  Mitchell,  36  Minn.  3;  Peterson  v.  Mnlford,  36 
N.  J.  L.  481;  Nuding  v.  Urich,  169  Pa.  St.  289;  Yake  v.  Pugh,  13 
Wash.  78,  52  Am.  St.  Rep.  17. 


665  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.      §  127a 

tion;^'^^  and,  if  she  becomes  the  debtor  of  her  husband, 
hits  creditors  may,  by  process  of  <^arui.shmeut,  enforce 
for  their  own  benelit  the  liability  existing  against  her 
and  in  favor  of  him."**"  Whether,  in  the  absence  of  any 
express  contract  upon  the  subject,  there  is  an  implied 
obligation  on  the  part  of  a  wife  to  compensate  her  hus- 
band for  services  in  the  management  of  her  separate 
estate  is  a  question  which  has  been  very  little  consid- 
<^red  by  the  courts,  the  tendency  of  the  few  existing 
decisions  upon  the  subject  being  to  the  effect  that,  un- 
der ordinary  circumstances,  there  is  no  such  implied 
•contract  upon  her  part.^^'' 

It  has  sometimes  happened  that  a  husband  has  de- 
voted the  major  part  of  his  time  and  all  of  his  skill  and 
ability  either  in  the  management  of  the  separate  prop- 
erty of  his  wife,  or  in  the  conduct  of  business  carried  on 
in  her  name,  and  that  her  property  has  been  augmented 
in  value  or  her  business  caused  to  realize  large  profits, 
and,  the  husband  being  indebted  and  having  no  other 
property,  his  creditors  have  claimed  that  they  should 
in  some  manner  be  permitted  to  enforce  their  obliga- 
tions against  the  fruits  of  the  husband's  labor  and  skill, 
though  existing  in  the  form  of  the  wife's  separate  estate 
or  business,  and  there  are,  doubtless,  cases  indicating 
that  this  claim  of  his  creditors  ought,  under  some  cir- 
cumstances and  by  some  mode  of  i)r()redure.  to  be  sus- 
tained."****    On  the  other  hand,  it  is  insisted  that  cred- 

«85  Keller  v.  Mayer.  55  Ga.  40(1-409. 

888  Keller  v.  Mayer,  55  Ga.  40G. 

897  Lewis  V.  .Tohus,  24  Cal.  98,  So  Am.  Dec.  49:  Perkins  v.  Per- 
"klns,  7  Laus.  19. 

3«'*  Nance  v.  Nance,  84  Ala.  375,  5  Am.  St.  Rep.  378;  Woods  v. 
Montevallo.  84  Ala.  560.  5  Am.  St.  Rep.  393:  Brooks-Waterfield  Co. 
V.  Frishie.  99  Ky.  125.  59  Am.  St.  Rep.  4.52:  Trefethen  v.  Lyman.  90 
Me.  370,  GO  Am.  St.  Rep.  271;  Wortman  v.  Price,  47  111.  22;  Patten 


§  127a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  56& 

itors  do  not  have  any  right  under  the  existing  laws 
to  compel  their  debtor  either  to  labor  for  them,  or, 
though  he  labors  for  himself  or  others,  to  accumulate 
a  fund  out  of  which  they  may  be  able  to  compel  the 
payment  of  their  demand.  Where  the  separate  prop- 
erty of  a  wife  consists  of  a  farm  upon  which  she  and  her 
husband  reside,  or  by  the  tilling  of  which,  though  they 
do  not  reside  upon  it,  he  produces  the  means  of  their 
subsistence,  we  think  the  majority  of  the  courts  would 
not  hold  that  there  was  any  implied  contract  that  she 
should  reimburse  him  for  his  labors,  nor  that  the  result 
of  such  labors  would  make  the  products  of  the  place 
his  property,  rather  than  hers,  and  therefore  subject 
to  execution  against  him,  where  such  products  would 
not  be  subject  to  execution  against  him  had  she  em- 
ployed other  agents  and  servants  in  their  production.^** 
In  a  comparatively  recent  case  upon  the  subject  it  ap- 
peared that  a  husband  failed  in  business,  being  at  the 
time  indebted  to  his  wife;  that  she,  with  other  creditors, 
obtained  a  judgment  against  him,  under  which  his 
stock  of  goods  was  sold  under  execution  to  her  and  oth- 
ers of  his  creditors,  who  thereafter  continued  the  busi- 
ness, employing  him  as  a  clerk;  that  ultimately  she 
purchased  the  interest  of  the  other  creditors,  and  there- 
after prosecuted  the  business  in  her  own  name,  employ- 
ing her  husband  to  act  as  manager  at  a  salary  of  five 
dollars  per  week,  they  and  their  family  being  supported 

V.  Patten.  7.5  111.  446;  O'Leary  v.  Walter,  10  Abb.  Pr.  N.  S.  439;  GIM- 
den  V.  Taylor,  16  Oh.  St.  .501,  91  Am.  Dec.  98. 

389  Nance  v.  Nance,  84  Ala.  375,  5  Am.  St.  Rep.  378:  Eilers  v. 
Conraflt,  39  Minn.  242,  12  Am.  St.  Rop.  ('41:  Taylor  v.  W^ands.  5.^ 
N.  J.  Eq.  491,  62  Am.  St.  Rep.  818;  Orr  v.  Bornstein.  124  Pa.  St.  311; 
Cooper  T.  Ham,  49  Ind.  .393:  Buckley  v.  Wells.  33  N.  Y.  .517:  Abbey 
V.  Deyo.  44  N.  Y.  .343;  Trapnell  v.  Conklyn.  37  W.  Va.  242.  38  Am^ 
St.  Rep.  30;  Dayton  v.  Walsh,  47  W^is.  113,  32  Am.  St.  Rep.  757. 


567  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.      §  127a 

out  of  the  proceeds  of  the  business.     After  this  course 
of  dealing  had  continued  for  several  years,  she  sold  the 
business  and  invested    the    proceeds  in  real  property 
which  the  husband's  creditors  sought  to  reach  and  ap- 
propriate to  the  payment  of   their  debts.     The    court 
held  that  the  evidence  in  the  case  did  not  sustain  the 
claim  that  any  scheme  had  been  entered  into  or  pur- 
sued with  the  view  of  defrauding  the  husband's  credit- 
ors; that  as  against  such  creditors  the  wife  might  law- 
fully employ  her  husband,  with  or  without  hire,  to  man- 
age and  assist  in  carrying  on  the  business;  that  in  avail- 
ing herself  of  the  services  of  her  husband,  she  did  not 
subject  her  separate  estate  to  the  claims  of  creditors; 
and,  finally,  "that  the  time,  talents,  and  industry  of  a 
debtor  are  at  his  own  disposal,  and  that  his  creditors 
have  no  claim  thereto;  that  he  may  bestow  them  gratu- 
itously upon  Avhoni  he  will,  upon  his  wife  as  well  as 
upon  another;  that  he  cannot  be  comi)elled  to  labor  for 
the  benefit  or  advantage  of  his  creditors."  ■"***    In  a  still 
more  recent  decision,  the  court  conceded  the  right  of  a 
wife  to  the  assistance  and  labor  of  her  husband  which 
might  be  given  to  her  separate  property, and, "although 
it  may  be  changed  from  a  rudeto  a  manufactured  state, 
it  remains  her  propert}'  still,  and  cannot  be  levied  on 
by  execution  or  attached   for  his  debts."     The  court, 
however,  reached  the  conclusion  that  there  were  cir- 
cumstances under  which  a  court  of  equity  would  under- 
take to  grnnt  relief  as  against  a  wife  to  the  extent  of 
wresting  from  her  part  of  the  profits  of  a  business  real- 
ized through  the  skill  and  labor  of  her  husband.     After 
examining  many  authorities,  the    court   said:    "From 
these  and  other  numerous  authorities  examined,  there 

390  Afnyers  v.  Kalsor.  85  Wis.  382,  39  Am.   St.  Kep.  849;  Baxter 
V.  Maswell,  115  Pa.  St.  4G9. 


§  127a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  568 

can  be  no  other  conclusion  reached  than  that,  if  a  man 
skilled  in  an}'  employment  does  business  in  his  wife's 
name  with  the  capital    furnished    by  her,  and    large  • 
profits  over  and  above  the  necessary  expenses  of  the 
business,  including  the  support  of  himself,  wife,  and 
family  accrue  therefrom,  owing  to  his  skill  and  experi- 
ence, and  he  turns  such  profits  over  to  his  wife,  or  in- 
vests them  in  property  for  her,  a  court  of  equity  will 
treat  such  arrangement  as  fraudulent,  and  will  make 
an  equitable  distribution  of  such  profits  between  the 
wife  and  existing  creditors  of  the  husband.     Not  that 
the  wife  is  guilty  of  any  actual  fraud,  but  that  her 
hand,  be  it  ever  so  chaste,  is  polluted  by  receiving  as  a 
gift  from  her  husband  the  funds  which  he  is  endeavor- 
ing to  fraudulently  conceal,  under  the  cloak  of    her 
separate  property,  from  the  searching  eyes  of  his  cred- 
itors." ^^^    It  is  well  to  remember,  in  connection  with 
this  language,  that  it  Avas  applied  to  a  case  in  which  a 
man,  owning  property,  conveyed  it,  in  contemplation 
of  his  approaching  marriage,  to  his  intended  wife  for 
the  purpose  of  defrauding  his  creditors,  of  which  pur- 
pose, however,  she  had  no  notice;  and  that  in  every  sub- 
sequent act  and  scheme  the  husband  was,  in  the  opin- 
ion of  the  court,  actuated  by  a  desire  to  avoid  his  cred- 
itors, and  to  so  manage  his  business  that  the  very  con- 
siderable profits  accruing  therefrom  and  from  his  labors 
should  not  result  in  any  fund  or  property  subject  to  the 
satisfaction  of  their  demands;  and  that  he  appeared  to 
take  special  delight  in  showing  how  skillfully  he  had 
managed  to  increase  the  value  of  his  wife's  estate  "mag- 
nificently, and  yet  secure  it  beyond  the  reach  of  the 
clutches  of   his   own    creditors."     This,  doubtless,  in- 
cited the  court  to  extreme  language  and  measures  for 

'  891  Boggess  V.  Richards,  39  W.  Va.  5G7,  45  Am.  St.  Rep.  938. 


«69  PERSONAL  i'llOPERTY  SUliJECT  TO  EXECUTION.        §  128 

the  purpose  of  thwarting  an  unconscionable  scheme 
and  t'ormulatJug  rules  to  discourage  future  attempts  of 
a  like  nefarious  character.  The  laii,i;ii;i^('  of  wi-ath, 
€ven  when  justifiable,  is  rarely  applicable  to  ordinary 
affairs,  and  this  is  especially  true  when  it  takes  the 
form  of  general  rules.  This  applies  to  tlu'  utterance*? 
of  judges  and  others  discharging  functions  of  a  public 
nature,  as  well  as  to  the  less  cam  ions  (lenun<'iations  of 
persons  speaking  for  private  interests  only. 

§  128.    Property   of    Wife    under    Execution    against 

iHerself. — .Married  women  are  not  usnally  regarded  as 
exempt  from  the  jurisdiction  of  the  courts.  Judgments 
against  them,  until  vacated  in  some  proper  proceed- 
ings, are  generally  binding  to  all  intents  and  purposes, 
and  are  capable  of  being  enforced  in  the  sanje  manner 
as  judgments  similar  in  other  rospects.  Hence,  when  a 
personal  judgment  for  money  is  enteivd  against  a  mar- 
ried woman,  either  alone  or  in  conjunction  with  other 
defendants,  it  is  commonly  conceded  that  execution 
may  be  issued,  under  which  the  sheriff  may  seize  and 
sell  her  separate  property.'"'"*-  There  are,  it  is  true, 
states  in  which  a  judgment  against  a  married  woman, 
when  not  founded  upon  a  contract,  is  deemed  void,  and, 
where  such  is  the  case,  an  execution  issued  thereon 
must  be  equally  void.^"^  Even  in  those  states  in  which 
this  rule  is  sustained,  it  is  restricted  to  judgments  upon 
obligations  ex  contractu,  and  not  extended  to  those 
based  upon  torts  and  fixing  a  liability  therefor,  or  im- 

•"'02  Smith  V.  Taylor,  11  Ga.  20:  Schafroth  v.  Ambs.  4G  Mo.  114; 
Tloundtree  v.  Thomas,  32  Tex.  286:  ^^us£:rave  v.  ^tussrave,  54  ill. 
ISO;  Van  Metre  v.  Wolf.  27  Iowa,  341:  Merrill  v.  St.  Louis.  S,?  Mo, 
^44. 

3«'^  White  V.  Manufacturing  Co.,  2'J  W.  Va.  385,  G  Am.  St.  Rep. 
<J50. 


§  12Sa     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  570 

posing  fines  for  offenses  committed  in  violation  of  the 
penal  codes.  To  judgments  and  convictions  of  this  char- 
acter women  are  subject  equally  with  men,  and  execu- 
tious  issued  therefor  may  be  levied  upon  their  separate 
property.^'^'*  In  at  least  one  case  it  has  been  held  that, 
when  a  woman  marries,  her  debt  becomes  the  debt  of 
her  husband;  that  he  alone  is  responsible  for  its  pay- 
ment; and  that  in  no  case,  during  the  coverture,  can 
execution  issue  against  her  separate  estate,  whether  for 
a  debt  contracted  before  or  after  her  marriage.^**^ 

§  128  a.  Property  of  Insane  Persons. — Where  a  judg- 
ment against  a  lunatic  is  deemed  valid,  it  must  follow 
that  the  plaintiff  is  entitled  to  some  efficient  means  of 
enforcing  it.  The  legislature  may  interpose,  especially 
where  the  lunacy  has  been  judicially  declared  and  a 
guardian  for-  the  insane  defendant  appointed,  and  re- 
quire the  creditor  to  proceed,  as  in  the  case  of  a  deceased 
person,  by  presenting  the  judgment  to  the  court  having 
jurisdiction  of  the  estate,  and  may  forbid  the  enforce- 
ment of  a  judgment  by  execution,"*^^'  in  which  event  it 
is  evident  that  the  property  of  the  lunatic  can  be  ap- 
plied to  the  satisfaction  of  the  judgment  only  by  pro- 
curing some  order  of  the  court  having  jurisdiction  of 
the  estate,  directing  the  sale  of  such  property /^"^  If, 
on  the  other  hand,  the  legislature  has  not  taken  any 
action  upon  the  subject,  or  where,  though  it  has  author- 
ized a  proceeding  for  the  appointment  of  a  guardian  for 

894  Smith  V.  Taylor,  11  Ga.  20;  Merrill  v.  City  of  St.  Lonis.  83 
Mo.  244,  53  Am.  Rep.  076;  Gill  v.  State,  39  W.  Va.  479,  45  Am.  St. 
Kcp.  928. 

395  HaysTOod  v.  Harris.  10  Ala.  201. 

896  McNees  v.  Thompson,  5  Bush,  G8G;  Wrijrht's  Appeal.  8  Pa.  St. 
57. 

897  Geraian  N.  B.  v.  Engeln's  Committee,  14  Bush,  708. 


671  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  121) 

the  lunatic,  and  empowered  the  court  to  take  posses- 
sion of  his  estate,  no  proceedings  have  been  taken,  the 
property  of  the  lunatic  must  be  subject  to  execution 
to  the  same  extent  as  that  of  a  person  of  sound  mind."^'**** 

PROPERTY  IN  THE  CUSTODY  OF  THE  LAW. 

§  129.  Property  in  the  Hands  of  Receivers  and  As- 
signees.— It  is  very  clear  that  all  property  in  custody 
of  the  law  is  not  subject  to  any  seizure  or  interference 
by  officers  acting  under  writs  of  execution;  ^^  but  some 
difficulty  may  be  experienced  in  determining  when 
property  is  so  within  the  custody  of  the  law  as  to  be 
shielded  by  this  rule.  When  a  court  of  equity  has  acted 
by  taking  property  into  its  possession  by  the  appoint- 
ment of  a  receiver,  such  propertj',  wliether  real  or  per- 
sonal, is  clearly  in  custodia  legis.  The  whole  purpose 
of  the  suit  might  be  defeated  if  an  officer  could  wrest 
the  property  from  the  agent  of  the  court,  and  sell  it  by 
virtue  of  a  writ  against  one  of  the  contending  parties. 
Such  property  is  not  subject  to  execution.'*****  This 
exemption  from  execution  has  been  held  to  continue, 
though  the  order  appointing  the  receiver  has  been  sus- 

308  Tomlinson  v.  Devore,  1  Gill.  345;  Pollock  v.  Horn.  13  Wash. 
626,  52  Am.  St.  Rep.  66;  Re  Clarke,  C.  A.  (1S9S)  1  Ch.  336. 

309  Hackley's  Ex'r  v.  Swigert,  5  B.  :Mon.  SO,  41  Am.  Doe.  2."6; 
Dunsmore  v.  Furstenfeklt.  88  Cal.  522,  22  Am.  St.  Rep.  331;  Wal- 
lace V.  ^Vallace,  48  N.  Y.  Supp.  593. 

400  Goiivornour  v.  Warner,  2  Sand.  624;  Wiswall  v.  Sampson.  It 
How.  52;  Martin  v.  Davis,  21  Iowa,  535;  Field  v.  Jones,  11  Ga.  413; 
Nelson  v.  Conner,  6  Rob.  (La.)  339;  County  of  Yuba  v.  Adam.s  &  Co.. 
7  Cal.  35;  Glenn  v.  Gill,  2  Md.  1;  Taylor  y.  Gillian.  23  Tex.  508;  Rob- 
inson V,  A.  &  G.  R.  R.  Co.,  66  Pa.  St.  160;  Bcutlcy  v.  Slirieve.  4  Md. 
Ch.  412;  Farmers'  Bank  v.  Boaston.  7  Gill  &  .T.  421,  28  Am.  Dec. 
226;  Lan.irdon  v.  Ix)ckett.  6  Ala.  727,  41  Am.  Dec.  78:  Jackson  v. 
Lahoe,  114  111.  287;  State  v.  Ellis,  45  La.  Ann.  1418;  Gardner  v. 
Caldwell.  16  Mont.  221;  Reesuer  v.  Gulf  etc.  Ry.  Co.,  89  Tex.  656. 
59  Am.  St.  Ren.  84. 


§  129       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  572 

pended  by  the  giving  of  a  sufficient  supersedeas  bond, 
and  the  consequent  surrender  of  the  property  by  the  re- 
ceiver.'***^ Of  course,  the  court  appointing  a  receiver 
does  not  thereby  acquire  jurisdiction  to  take  possession 
of  property  which  does  not  belong  to  any  party  to  the 
action,"*"-  and  the  property  of  a  third  person  may  be 
levied  upon  and  sold,  though  it  is  to  some  extent  con- 
nected with,  or  related  to,  property  lawfully  in  the  pos- 
session of  the  receiver.  Thus,  if  a  judgment  exists 
against  a  person  whose  property  is  in  the  hands  of  a 
receiver,  this  does  not  constitute  any  impediment  to 
the  levy  upon  and  sale  of  such  judgment,  for,  though  it 
be  levied  upon  and  sold,  the  possession  of  the  receiver 
is  in  no  manner  interfered  with,  and  the  purchaser, 
when  he  seeks  to  assert  it,  cannot  proceed  to  interfere 
with  such  possession  to  any  greater  extent  than  the 
original  judgment  creditor  could  have  done  had  it  re- 
mained his  property."***^ 

After  the  court  appointing  a  receiver  has  made  an 
order  for  the  distribution  of  moneys  in  his  hands,  so 
that  from  such  order  it  definitely  appears  that  persons 
designated  or  described  therein  are  entitled  to  such 
moneys,  and  he  has  no  further  duty  but  to  pay  them 
over  in  obedience  to  such  order,  he  may  be  garnished 
therefor.^***  So,  if  the  receivers,  in  their  official  capac- 
ity, employ  agents  or  servants,  and  become  indebted  to 
them,  such  receivers  may  be  garnished  on  account  of 
such  indebtedness.  The  garnishment  will  not  sustain 
an  independent  suit  or  proceeding  in  another  court 
against  the  receiver,  but  the  garnishing  creditors  may 

401  Stanton  v.  Heard,  100  Ala.  515. 

402  Farmers'  N.  B.  v,  Scott  (Tex.  Civ.  App.),  45  S.  W.  26. 

403  W^heatou  v.  Spooner,  52  Minn.  417. 

404  Duusmoor  v.  Furstenfeldt,  88  Cal.  -"22,  22  Am.  St.  Rep.  331. 


673  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  123 

apply  to  the  court  whose  receiver  is  thus  garnished  for 
an  order  directing  him  to  pay  to  them  the  moneys  due 
to  the  judgment  de>btor,  and  which  have  been  subjected 
to  garnishment.'*"'*  No  officer  has  any  ri^ht  to  levy  on 
property  in  the  custody  of  a  receiver  without  permis- 
sion of  the  court.  Proceeding  without  such  permission, 
he  may  be  brought  before  the  court,  punished  for  con- 
tempt, and  obliged  to  relinquish  his  levy.**^^  Property 
has  been  held  to  be  in  custody  of  law  where  a  receiver 
had  been  appointed  but  had  declined  to  act."*"^  While 
a  levy  upon  property  in  the  possession  of  a  receiver 
may  be  punished  as  a  contempt  of  court,  and  the  cred- 
itor levying  may,  by  proceedings  against  him,  be  com- 
pelled to  relinquish  his  levy  and  surrender  the  posses- 
sion of  the  property  to  the  receiver  from  whom  it  was 
taken,  the  proceeding  to  punish  for  contempt  is  not  the 
only  remedy  of  the  receiver.  The  levy  upon  and  sale 
of  the  property  under  such  circumstances,  being  en- 
tirely unauthorized  by  law.  are  absolutely  void,  and  pos- 
session of  the  property  may  be  recovered  by  the  receiver 
in  any  appropriate  action  commenced  either  against  the 
officer  making  the  levy  or  a  purchaser  under  execution 
sale  or  any  other  person  to  whom  possession  of  such 
property  has  come."***®  Though  the  propei-ty  for  which 
a  receiver  has  been  appointed  is  partly  situated  in  an- 
other state,  it  has  been  held  that  the  title  thereto  and 

405  Trwin  v.  McKochnie.  58  Minn.  145.  40  Am.  St.  Rep.  49o. 

406  Russell  V.  East  Ansrlican  R.  W.  Co..  3  Macn.  &  G.  104:  Coe 
V.  C.  P.  &  I.  R.  R.  Co.,  10  Ohio  St.  403.  75  Am.  Dec.  518:  Iligrli  on 
Receivers,  sec.  163;  Sercomb  v.  Catlin.  128  111.  550.  15  Am.  St.  Rep. 
147:  Holhrook  v.  Ford,  153  111.  633.  46  Am.  St.  Rep.  917;  Wallln.i? 
V.  Miller.  108  N.  Y.  173.  2  Am.  St.  Rep.  400. 

407  Skinner  v.  Maxwell,  08  N.  C.  400. 

40MVallin,s  v.  Miller.  108  N.  Y.  173.  2  Am.  St.  Rep.  400;  Texaa 
etc.  R.  Co.  V.  Lewis,  81  Tex.  1.  26  Am.  St.  Rep.  776. 


§  1*29       TERSONAL  PROPERTY  ISUBJEUT  TO  EXECUTION.  574 

the  constructive  possession  thereof  vest  in  him  by  vir- 
tue of  his  appointment,  so  that  a  citizen  of  the  state 
wherein  he  is  appointed  cannot  proceed  against  such 
property  in  the  other  state  v^ithout  the  sanction  of  the 
courts  of  his  domicile,  and,  if  he  insists  upon  doing  so, 
that  he  may  be  punished  for  his  contempt.**^^  The  ef- 
fect of  the  appointment  of  a  receiver,  in  a  suit  brought 
by  one  partner  against  another  for  the  dissolution  of 
the  partnership  and  the  settlement  of  its  affairs,  has 
been  considered  in  a  series  of  cases  in  California  aris- 
ing out  of  the  somewhat  notorious  failure  pf  Adams 
&  Company.  The  conclusion  there  reached  was,  that 
until  the  dissolution  of  the  partnership  is  decreed  and 
the  pro  rata  distribution  of  its  assets  ordered  among 
the  creditors,  they  are,  notwithstanding  the  appoint- 
ment of  a  receiver,  at  liberty  to  pursue  their  remedies 
at  law,  and  entitled  to  retain  any  liens  resulting  from 
their  diligence  in  such  pursuit.^^®  The  reasons  given 
in  support  of  these  decisions  were,  that  the  suit  was 
one  to  which  the  creditors  were  not  parties,  and  over 
which  they  had  no  control;  that  they  might  settle  or  ad- 
just the  case  between  themselves,  or  the  plaintiff  might 
dismiss  it  at  any  time;  that  until  the  dissolution  was 
decreed,  it  could  not  be  known  that  the  firm  business 
would  be  terminated  and  its  affairs  settled  by  the  court; 
and  that  it  would  be  unwise  to  deny  the  creditors  the 
right  to  pursue  the  partnership  because  one  of  its  mem- 
bers had  obtained  the  appointment  of  a  receiver  in  a 
suit  which  he  might  dismiss  or  delay  at  pleasure.  This 
reasoning  is  not  without  force;  but  we  think  it  more 
appropriate  when  presented  to  the  court  in  opposition 

*09  Sercomb  v.  Catlin,  128  111.  556,  15  Am.  St.  Rep.  147. 
4">Arlams  v.  Hackett,  7  Cal.  187;  .Adams  v.   Woods,  8  Cal.  1.52, 
68  Am.  Dec.  313;  Adams  v.  W'oods,  9  Cal.  2-1. 


did  PERSONAL  PROrERTY  SUBJECT  TO  EXIX'UTION'.        §  li'J 

to  the  appointment  of  the  receiver,  or  in  support  (jf  a 
motion  for  leave  to  proceed,  notwithstanding  such  ap- 
pointment;^** for  generally  courts  of  equity  will  not 
permit  a  party  who  has  defied  their  authority,  by  seiz- 
ing under  execution  property  in  their  possession,  to  ex- 
cuse himself  on  the  ground  that  the  order  appointing 
the  receiver  was  irregularly  or  improvidently  made.'**- 
An  assignee,  appointed  in  proceedings  at  law  for  the 
benefit  of  insolvent  debtors,  seems  to  stand  in  the  same 
position  as  a  receiver.     He  is  an  officer  of  the  court,  and 
moneys  and  effects  in  his  hands  are  in  the  custody  of 
the  law.     They  cannot  be  reached  by  garnishment,"**'* 
unless  a  dividend  has  been  declared,  and  the  assignee 
has  been  directed  to  pay  it  over  to  the  respective  cred- 
itors.'*"    One  to  whom  a  debtor  has  made  a  voluntary 
assignment  of  his  assets  for  the  benefit  of  creditors  is 
liable  to  be  garnished.     If  he  has  in  his  hands  assets 
more  than    sufficient  to  discharge   the  claims  of   the 
creditors   assenting   to   the   assignment,  a   dissenting 
creditor   may  reach   the    surplus    by  garnishment.^*® 
Where,  however,  an  assignment  for  the  benefit  of  cred- 
itors is  for  some  reason  invalid,  and  hence  vests  title 
in  the  assignee,  the  property  cannot,  though  he  has 
taken  possession  of  it,  be  deemed  in  the  custody  of  the 

<ii  See  Jaclvson  v.  Lahee,  114  111.  287;  Waring  v.  Robinson,  Hoff. 
Ch.  524. 

♦1!  Russell  V.  East  Anglican  R.  Co.,  3  Macn.  &  G.  104. 

<i3  Colby  V.  Coates,  6  Cush.  558;  Straw  v.  .Teuks,  G  Dak.  414; 
Weimer  v.  Scales,  74  Miss.  1;  Geilinger  v.  riiillippi.  133  U.  S.  246. 

*i*  Thayer  v.  Tyler,  5  Allen,  94;  Jones  v.  Gorham,  2  Mass.  375: 
Decoster  v.  Livermore,  4  Mass.  101. 

<i5  Leeds  v.  Sayward,  6  N.  H.  83;  Viall  v.  Bliss,  9  Pick.  13;  Ward 
V.  Lamson,  6  Pick.  358;  Brewer  v.  Pitkin,  11  Pick.  208;  Copeland  v. 
Weld,  8  Me.  411;  Jewett  r.  Barnard,  6  Me.  381;  Todd  v.  Bucknam, 
11  Me.  41. 


§  130       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  57t> 

law.     It  hence  remains  subject  to  execution  in  favor  of 
the  creditors  of  the  assignor."**^ 

§  130.  Moneys  Collected  by  Sheriffs,  Constables^ 
Clerks,  and  Justices. — The  authorities  are  very  nearly 
unanimous  in  sustaining  the  proposition  that  when  a 
sheriff  or  constable  has  collected  money  on  execution, 
it  can  neither  be  levied  upon  nor  garnished  by  the  same 
or  another  officer,  under  a  writ  against  the  judgment 
creditor.'*^''     Various  reasons  have  been  given  in  sup- 

416  Bradley  v.  Bailey.  95  Iowa,  745. 

41T  Marvin  v.  Hawley.  9  Mt).  378,,  43  Am.  Dec.  547;  Keatinj:  v. 
Spinlt.  8  Ohio  St.  124,  62  Am.  Dec.  214;  Jones  v.  Jones,  1  Bland. 
445,  IS  Am.  Dec.  327;  Turner  v.  Fendall,  1  Cranch.  117;  Wood  v. 
Wood,  14  Ad.  &  E.,  N.  S.,  397:  3  Gale  &  D.  5.32;  7  Jnr.  325;  12  L.  J. 
Q.  B.  141;  Ex  parte  Fearle  and  Lewis,  13  Mo.  467,  53  Am.  Dec.  155;. 
Winton  v.  State,  4  Ind.  321;  Thompson  v.  Brown,  17  Pick.  462;  Du- 
bois V.  Dubois.  6  Cow.  494;  State  v.  Lea,  8  Ired.  94;  Harding  v. 
Stevenson,  6  Har.  &  J.  264;  Staples  v.  Staples,  4  Greenl.  532;. 
Knight  v.  Criddle,  9  East,  48;  Muscott  v.  Woodworth,  14  How.  Pr. 
477;  Baker  v.  Kenworthy,  41  X.  Y.  215;  Ileddick  v.  Smith,  3  Scam. 
451;  Padfield  v.  Brine,  3  Brod.  &  B.  294;  Collingridge  v.  Paxton,  11 
Com.  B.  683:  State  v.  Taylor,  56  Mo.  492;  Dawson  v.  Holcomb,  1 
Ham.  275,  13  Am.  Dec.  618;  Willis  v.  Pitkin,  1  Root,  47;  Reno  v. 
Wilson,  Hemp.  91;  Prentiss  v.  Bliss,  4  Vt.  513,  24  Am.  Dec.  631;. 
First  V.  Miller,  4  Bibb,  311;  Gray  v.  Maxwell,  50  Ga.  108;  Camp- 
bell V.  Hasbrook,  24  111.  243;  Stevenson  v.  Douglas.  Bert.  281.  In 
the  foregoing  cases,  attempts  were  made  to  levy  upon  money  in  the 
officer's  hands.  The  following  cases  show  that  the  same  principles 
apply  to  attempted  garnishments:  Clymer  v.  Willis,  3  Cal.  363,  58^ 
Am.  Dec.  414;  Burrell  v.  Letson.  1  Strob.  239:  Hill  v.  Lacrosse  & 
M.  R.  R.  Co.,  14  Wis.  293.  80  Am.  Dec.  783;  Lightner  v.  Steinagel,  3a 
111.  516,  85  Am.  Dec.  292;  Wilder  v.  Bailey,  3  Mass.  289;  Pollard 
V.  Ross,  5  Mass.  19;  Robinson  v.  Howard,  7  Cush.  257;  Morris  v. 
Penniman,  14  Gray,  220.  74  Am.  Dec.  675;  Farmers'  Bank  v.  Beas- 
ton,  7  Gill  &  J.  421,  28  Am.  Dec.  226;  Jones  v.  Jones,  1  Bland,  443, 
18  Am.  Dec.  337;  Overton  v.  Hill.  1  Murph.  47;  Blair  v.  Cantey,  2 
Spears,  34,  42  Am.  Dec.  360;  Zurcher  v.  Magee,  2  Ala.  253;  Drane 
V.  :McGavock,  7  Humph.  132:  Marvin  v.  Hawley,  9  Mo.  382,  43  Am. 
Dec.  547.  P.ut  Conant  v.  Bickoll,  1  D.  Chip.  50;  Hurlburt  v.  Hicks, 
17  Vt.  193.  44  Am.  Dec.  .329:  Lovejoy  v.  Lee,  35  Vt.  4.30;  Crane  v. 
Freese,  1  Har.  (N.  J.)  305;  Woodbridge  v.  Morse,  5  N.  H.  519;  Dolby- 


577     TERSOXAL  rROrKRTY  SUBJECT  TO  EXECUTION.   §  I.^O 

port  of  this  rule.  lu  some  of  the  cases,  the  judges  were 
satisfied  to  rest  their  judgment  on  the  general  state- 
ment that  such  moneys  were  in  custody  of  law.  In 
other  cases,  it  was  urged  that  money  collected  on  exe- 
cution does  not  thereby  become  the*  property  of  the 
plaintiff  in  the  writ;  that,  in  theory  of  law,  it  is  to  be 
brought  into  court,  and  by  the  order  of  tlie  court  paid 
over  to  the  person  entitled  thereto;  that  the  officer, 
upon  the  receipt  of  such  money,  does  not  thereby  be- 
come the  debtor  of  the  plaintiff;  and,  finally,  that  it  is 
not  until  the  money  is  paid  over  to  the  plaintiff  that  it 
becomes  his  property,  and  subject  to  execution  against 
him.  It  has  also  been  suggested,  as  a  matter  of  pub- 
lic policy,  that  the  officers  of  the  law,  in  the  discharge 
of  their  duties,  should  be  protected  from  the  hindrance 
and  embarrassment  consequent  from  holding  money 
and  other  property  in  their  official  custody,  liable  to 
levy  and  seizure  in  other  suits. 

Writs  of  execution  may  be  issued  to  different  officers 
against  the  same  defendant,  and  may  constitute  liens 
upon  his  personal  property,  and  it  may  so  happen  that, 
through  the  diligence  of  the  officer  charged  with  its  exe- 
cution, the  junior  writ  may  be  first  levied.  The  ques- 
tion then  arising  is.  Is  the  officer  having  the  senior  writ 
entitled,  because  of  its  priority,  to  take  the  property 
from  the  possession  of  the  officer  who  has  levied  under 
the  junior  writ?  As  the  levy  under  that  writ  was  au- 
thorized thereby,  we  know  not  how  to  resist  the  conclu- 
sion that  by  such  levy  the  property  was  placed  in  the 
custody  of  the  law.    If  the  officer  claiming  to  have  the 

V.  Mullins.  3  Humph.  437,  39  Am.  Dec.  ISO;  and  Hill  v.  Boach,  1 
Beasl.  31,  differiiiir  from  the  majority  of  the  authorities,  hold  that 
money  in  the  sheriff's  liands  may  be  garnished  under  ^Yrit  against 
the  judsnient  oroditor. 
Vol.  I.— 37 


§  130       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  578 

senior  writ  may  forcibly  take  possession  of  the  prop- 
ei-ty,  it  ni-ust  follow  that  a  conflict  of  force  may  arise 
between  two  persons,  both  acting  as  officers  of  the  law 
and  in  apparent  obedience  to  the  commands  of  valid 
writs  in  their  hands.  If,  on  the  other  hand,  the  officer 
having  the  senior  writ  may  not  levy  it,  notwithstanding 
the  prior  levy  under  the  junior  writ,  it  ma}'  happen  that 
the  officer  under  the  latter  writ  may  sell  the  property 
and  deliver  possession  thereof  to  a  purchaser  who  may 
succeed  in  removing  the  property,  and  may  thus  pre- 
vent the  satisfaction  of  the  writ  having  the  senior  lien. 
The  cases  considering  this  question  are  infrequent  and 
inadequate.  On  the  one  side  they  affirm  that  the  prop- 
erty levied  upon  under  the  junior  writ  is  in  custody  of 
the  law,  and  not  subject  to  any  further  levy,*^**  and,  on 
the  other,  that  the  officer  having  the  senior  writ  is  justi- 
fied in  levying  it,  regardless  of  the  levy  previously  made 
under  the  junior  writ.'*^®  In  some  of  the  states  the 
seller  of  personal  property  is  entitled,  upon  recovering 
judgment  for  the  i^urchase  price,  to  levy  upon  such 
property,  notwithstanding  any  claim  of  exemption,  ex- 
cept only  that  the  levy  may  not  be  made  as  against  an 
innocent  purchaser  for  value  without  notice  of  the  ven- 
dor's rights.  It  has  been  held,  therefore,  that  when 
two  writs  issue  against  the  same  defendant,  one  upon 
a  judgment  for  purchase  money,  and  the  other  not,  that 
the  plaintiff  in  the  first  judgment  has  a  prior  right,  and 
hence  may  levy  upon  the  property,  although  it  has  al- 
ready been  levied  upon  under  another  writ.^^'^  Money 
in  the  hands  of  a  sheriff  or  constable,  belonging  to  the 

418  Derrick  v.  Cole,  60  Ark.  394. 

*i9  Rogers    V.  Dickey,  1  Gilm.  644,  41    Am.  Dec.  204;  People  v. 
Smith.  20  111.  A  pp.  577. 

4  20  Bolckow  M.  Co.  V.  Turner,  23  Mo.  App.  103. 


579  PER.SONAL  rKOPEKTV  SUBJECT  TO  EXECUTION'.        §  130 

defendant,  bcinj,^  the  surplus  or  residue  reiuaiuini^  iu 
possession  of  the  oOicer  after  lie  lias  satisfied  the  writ, 
has  sometimes  been  regarded  as  in  custody  of  the  law, 
and  therefore  as  not  subject  to  execution. ^'^  ]>ut  in  a 
considerable  preponderance  of  the  cases  a  different 
view  has  been  taken.  The  execution  having  been  fully 
satisfied,  the  ofTieer  ceases  to  hold  the  money  by  virtue 
of  the  writ.  As  to  the  ascertained  surplus,  he  is  said 
to  be  liable  to  the  defendant  as  for  money  had  and 
received.  Such  surplus  can,  therefore,  while  in  the  offi- 
cer's hands,  be  reached  by  the  defendant's  creditors."*'^ 
In  Connecticut,  where  the  writ,  instead  of  commanding 
the  officer  to  have  the  money  in  court,  directed  him  to 
cause  the  mo,ney  to  be  levied,  "and  paid  and  satisfied 
to  plaintiff,"  the  court  held  that  the  officer  was  thereby 
made  the  mere  agent  of  the  plaintiff,  and,  as  such,  that 
he  could  be  garnished  for  moneys  collected  for  plaintiff 
under  the  wi-it.^^^  Money  paid  into  court  in  satisfac- 
tion of  a  judgment,  whether  paid  to  the  clerk  of  the 

421  Fieldhouse  v.  Croft.  4  East.  510;  Fretz  v.  Heller.  2  Watts  &  S. 
397;  Harrison  v.  Tayuter,  G  Mees.  &  W.  387;  Willows  v.  Ball.  2 
Bos.  &  P.  N.  11.  37G;  Crossen  v.  McAllister,  2  Pa.  L.  J.  199;  Beutley 
V.  Clesrg.  2  Pa.  L.  .T.  62;  Oriental  Bank  v.  Grant,  1  Wyatt  &  W.  16. 

422  Pierce  v.  Carlton,  12  111.  3o8.  54  Am.  Dec.  4a5;  Ligbtner  v. 
Steinagel,  33  111.  516,  85  Am.  Dec.  292;  Orr  v.  McBride,  2  Car.  Law 
Rep.  257;  Davidson  v.  Clayland.  1  Har.  &  J.  546;  Jacqnett's  Adm'r 
V.  Palmer.  2  Harr.  (Del.)  144:  King:  v.  INIoore,  6  Ala.  160,  41  Am. 
Dec.  44;  Hearn  v.  Crutcher,  4  Yerg.  401;  Dickson  v.  Palmer.  2  Rich. 
Eq.  407;  Tucker  v.  Atkinson.  1  Humph.  300,  34  Am.  Dec.  650;  Wat- 
son V.  Todd.  5  Mass.  271;  Hill  v.  Beach.  1  Beasl.  31:  Lovejoy  v.  Lee. 
35  Vt.  430;  Wheeler  v.  Smith,  11  Barb.  345;  Hamilton  v.  W^ard.  4 
Tex.  356;  Walton  v.  Compton,  28  Tex.  569;  Lynch  v.  Hanahan.  9 
Rich.  186;  Payne  v.  Billingham,  10  Iowa,  360;  Oppenbeimer  v.  Marr, 
31  Neb.  811.  28  Am.  St.  Rop.  5.'59;  Roddy  v.  Erwin.  31  S.  C.  36. 

423  New  Haven  Saw-mill  Co.  v.  Fowler,  28  Conn.  103. 


i  ISO       PERSONAL  mOPERTY  SUBJECT  TO  EXECUTION.  58a 

couit,^-^  or  to  a  judge,  or  justice  of  the  peace,^^^  is  in 
custodia  legis,  aud  exempt  alike  from  levy  or  garnish- 
ment. :Monej  paid  to  the  clerk  of  a  court  in  a  partition 
suit  was  held  to  be  liable  to  attachment,  after  the  court 
had  ordered  it  to  be  paid  over  to  the  parties  entitled 
thereto.*-**  Money  paid  to  a  sheriff,  to  effect  the  re- 
demption of  property  sold  under  execution,  is  protected 
from  seizure,  being  in  custody  of  the  law  until  it  is 
accepted  by  the  holder  of  the  certificate  of  purchase.*-'^ 
Money  cannot  be  placed  in  the  custody  of  the  law 
by  the  voluntary  and  unauthorized  act  of  a  party  not 
supported  by  any  order  of  court  or  by  any  writ  against 
him.  Hence,  where  a  creditor  commenced  a  suit  on  his 
own  account  to  compel  the  defendants  to  interplead, 
respecting  their  right  to  moneys  due  from  such  plain- 
tiff, and  he,  without  any  order  of  court,  deposited  with 
the  clerk  of  the  court  the  amount  which  he  admitted 
to  be  due,  it  was  held  that,  as  the  law  made  no  provision 
for  an  order  permitting  the  plaintiff,  in  an  action  of 
interpleader,  to  pay  into  court  the  money  or  property 
claimed,  the  act  of  the  plaintiff  did  not  place  the  money 
within  the  custody  of  the  law,  and  hence  that  it  was 
subject  to  attachment  or  execution.^®     One  of  the  rea- 

424  Ross  V.  Clark,  1  Dall.  354;  Sibert  v.  Humphries,  4  Ind.  481; 
Daley  v.  Cunnin.aliara,  3  La.  Ann.  5.5:  Farmers'  Bank  v.  Beaston,  7 
Gill  &  .T.  421,  28  Am.  Dec.  226:  Overton  v.  Hill,  1  Mnrph.  47;  Alston 
V.  Clay.  2  Hayw.  (N.  C.)  171:  Hunt  v.  Stevens,  3  Ired.  365:  Drane  v. 
McGavock,  7  Humph.  132;  Mnrrell  v.  Johnson,  3  Hill  CS.  C).  12r 
Bowden  v.  Schatzell,  Bail.  E,-,.  360,  23  Am.  Dec.  170;  Re  Forsyth. 
78  Fed.  Rep.  296;  .Tones  v.  Merchants  N.  B.,  76  Fed.  Rep.  683. 

425Corbyn  v.  Bollman.  4  W^atts  &  S.,342;  Hooks  v.  York,  4  Tnd. 
036.  Tt  Is  otherwise  in  Alabama.  Clark  v.  Boggs,  6  Ala.  809,  41 
Am.  Dec.  85. 

42C  Gaither  v.  Ballew.  4  .Tones.  488. 

427  Davis  V.  Seymour.  16  Minn.  210:  Lislitner  v.  Steinagel,  33  111. 
513,  85  Am,  Dec.  292. 

428  Kimball  v.  Richardson-Tvimball  Co.,  Ill  Cal.  380. 


S81  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.      §  130a 

sons  for  denying  the  right  to  levy  upon  property  in  cus- 
tody of  the  law  is  that  otherwise  a  conflict  must  arise 
between  different  officers  seeking,  in  the  performance  of 
their  duties,  to  seize  the  same  property.  This  reason 
does  not  exist  when  two  writs  are  in  tlic  hands  of  the 
same  officer.  It  has,  therefore,  sometimes  been  held 
that  a  sheriff,  having  moneys  in  his  hands  due  a  judg- 
ment creditor,  might  retain  such  moneys  under  a  writ 
'Coming  to  his  hands  against  such  creditor.^-^ 

§  130  a.  Property  Taken  from  a  Prisoner  upon  his 
Arrest,  by  a  sheriff,  policeman,  or  other  officer  charged 
with  that  duty,  is  not,  while  in  the  hands  of  such  offi- 
•cer,  subject  to  levy,  nor  can  it  be  reached  by  garnish- 
ment or  trustee  process.'*^^  This  exemption  is  not 
strictly  on  the  ground  that  the  property  is  in  custody 
of  the  law,  for  the  charge  under  which  the  arrest  was 
made  may  not  relate  to  the  property  taken  from  the 
])risoner,  and  under  no  circumstances  could  it  afi'ect  the 
title  thereto.  But  "we  should  fear  that  any  other  con- 
struction would  lead  to  a  gross  abuse  of  criminal  pro- 
cess. Such  process  might  be  used  to  search  the  person, 
or  otherwise,  under  cover  of  lawful  authority,  to  get 
possession  of  the  property  of  a  debtor,  in  order  to  place 
it  in  the  hands  of  the  officer,  and  thus  make  it  attach- 
able by  trustee  process."  *'**  "When  an  officer  of  the 
law,  acting  under  police  rules  or  without  them,  takes 

429  Ex  parte  Fearle  and  Lewis.  1.3  Mo.  4fi7.  .".•?  Am.  Dec.  155; 
Dolby  V.  Mullins.  3  Humph.  4.37.  39  Am.  Dec.  ISO;  yiann  v.  Kelsey. 
71  Tex.  600,  10  Am.  St!  Rep.  800. 

«o  Robinson  v.  Howard.  7  Ciish.  257;  Morris  v.  Penniman.  14 
■Gray,  220.  74  Am.  Dec.  G75;  Commercial  Exchange  Bank  v.  Mc- 
Leod.  Go  la.  005.  54  Am.  Rep.  .30;  Dahms  v.  Sears,  13  Or.  47;  Rich- 
ardson V.  Anderson,  18  S.  W.  195. 

"1  7  Cush.  259. 


§  130a     PERSONAL  TROPERTY  SUBJECT  TO  EXECUTION.  582 

from  his  prisoner  personal  property,  either  for  its  safe- 
keeping or  to  remove  from  his  control  that  which  he 
might  use  in  effecting  his  escape,  a  sound  public  pol- 
icy, we  think,  requires  that,  for  the  time,  it  should  be 
safe  from  seizure  by  civil  process.  We  speak  now  of 
such  property  as  is  in  no  respect  connected  with  the 
criminal  charge.  It  would  be  a  dangerous  temptation 
to  eager,  and,  sometimes,  unscrupulous,  creditors  to 
resort  to  the  machinery  of  the  criminal  courts  asjainst 
their  reluctant  debtors,  if  it  were  once  understood  that 
whatever  of  value  was  taken  from  the  person  of  the 
par-ty  arrested,  by  the  officer  having  him  in  charge,^ 
could  be  at  once  impounded  by  the  levy  of  an  execution 
or  attachment.  Such  a  practice,  we  are  sure,  would 
likely  be  productive  of  results  oppressive  to  the  indi- 
vidual, and  shocking  to  the  moral  sense  of  the  com- 
munity." "*^^  The  decisions  upon  this  subject  are  not^ 
however,  entirely  harmonious.  The  minority  concedes 
that,  if  the  arrest  is  made  in  bad  faith  and  for  the  pur- 
pose thereby,  and  by  a  search  of  the  prisoner,  to  obtain 
possession  of  property  that  it  may  thereafter  be  gar- 
nished or  levied  upon,  then  that  this  mere  trick  shall 
not  succeed,  but  they  insist  that,  when  the  arrest  is 
made  in  good  faith,  and  not  for  the  purpose  of  subject- 
ing property  to  execution  or  attachment,  then  that 
property  taken  from  the  prisoner  by  the  arresting  offi- 
cer is  not  so  in  the  custody  of  the  law  that  it  may 
not  be  seized  under  a  writ  of  attachment  or  execu- 
tion.^^-* 

432  Hall  V.  natch,  99  Tenn.  39.  03  Am.  St.  Rep.  822. 

433  Ex    parte    Hnrn,  02    Ala.  1<)2.  25    Am.  St.  Rep.  23,  and  notej 
Closson  V.  Morrison,  47  N.  H.  482,  93  Am.  Dec.  459. 


5S3  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  m 

§  131.    Moneys  and  other  Chattels  in  the  Possession 
of  aclmiiiistrators,^=**  exocutois/'-'-''  or   -uaidiuii.s,'-'''  iu 
their  olilicial  capacity,  are  almost  universally  conceded 
to  be  iu  custody  of  the  law,  and,  therefore,  are  neither 
subject  to  levy  under  execution,  nor  to  auy  process  of 
garnishment.     ''No  person  deriving  his  authority  from 
the  law,  and  obliged  to  execute  it  according  to  the  rules 
of  law,  can  be  holden  by  process  of  this  kind. '-•*•'''  AN'iJla 
have  expressly  provided  that  the  legacies  iu  the  bauds 
of  the  executor  should  not  be  subject  to  execution  or 
attachment  against  the  legatee,  and,  where  such  is  the 
"case,  the  exemption  thus  created  by  the  will  is  often 
respected  and  enforced  independent  of  the  question  we 
are  here  cousidering."*^**     In  most  instances  where  de- 
cisions have  been  made  holding  that  moueys  in  the 
hands  of  administrators,  executors,  or  guardians  could 
not  be  reached  under  process  against  the  creditor,  lega- 
tee, or  ward  who  might  become  entitled  to  such  moneys 
on  a  final  settlement  of  accounts,  the  courts  have  pro- 
fessed to  exempt  such  money,  both  because  it  was  in 
custodia  legis,  and  because  it  could  not  properly  be  said 

434  Curlinp  v.  ITy^e.  10  Mo.  374;  Colby  v.  Coates.  G  Cnsh.  558; 
Hancock  v.  Titus.  39  Miss.  224;  Selfridjre's  Appeal,  9  Watts  &  S.  G5; 
Thayer  v.  Tyler.  .5  Alleu,  U4;  Waite  v.  Osboru,  11  Me.  ISo;  Suggs  v. 
Sapp.  20  C.a.  100;  Marvel  v.  Houston,  2  Harr.  (Del.)  349;  Thorn  v. 
Woo(U-ufF.  5  Pike,  55;  Welch' v.  Gurley,  2  Hayw.  (N.  C.)  334;  Hartle 
V.  Long,  5  Pa.  St.  491;  Stout  v.  La  Folette,  64  Ind.  3a5. 

435  Barnes  v.  Treat.  7  Mass.' 271;  Picquet  v.  Swan.  4  Mason.  443; 
Young  V.  Young.  2  Hill  (S.  C.)  425;  Beckwlth  v.  Baxter.  3  N.  II.  G7; 
Stevenson  v.  Duulap,  33  S.  C.  350;  Laut  v.  Mauley.  71  Fed.  Rep, 
7. 

436  Cassett  V.  (Jrout.  4  Met.  480;  Hanson  v.  Butler,  48  Me.  81; 
GodboUl  V.  Bass,  12  Rich.  202;  Davis  v.  Drew,  G  N.  H.  399,  25  Am. 
Dec.  4G7. 

437  Brooks  V.  Cook.  8  Mass.  240. 

438  Estate  of  Goe,  14G  Pa.  St.  431.  28  Am.  St.  Rep.  805:  Estate  of 
Beck.  1.33  Pa.  St.  51.  19  Am.  St.  R.'p.  023;  (iarlaud  y.  Garland,  87 
Va.  758,  24  Am.  St.  Rep.  GS2;  post,  §  lS9iu 


§  131       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  584 

to  belong  to  the  defendant  in  execution  until  an  order 
of  the  court  had  been  entered  finally  establishing  his 
right  thereto,  and  directing  that  it  should  be  paid  over 
to  him  in  pursuance  of  such  order.  We  give  the  fol- 
lowing extracts  from  the  opinions  of  the  supreme  courts 
of  Connecticut  and  Pennsylvania,  showing  the  reasons 
influencing  those  courts  when  attempts  were  made  to 
garnish  legacies  in  the  hands  of  executors  before  a  final 
settlement  of  the  estate:  "An  executor  cannot  be  con- 
sidered as  the  debtor  of  a  legatee.  The  claim  is  against 
the  testator  or  his  estate;  and  the  executor  is  merely 
the  representative  of  the  deceased.  There  cannot  be  a 
debt  due  from  the  executor  within  the  meaning  of  the 
statute.  Xor  can  a  person,  like  an  executor,  deriving 
his  authority  from  the  law,  and  bound  to  perform  it 
according  to  the  rules  prescribed  by  law,  be  considered 
as  a  trustee,  agent,  attorney,  or  factor  within  the  stat- 
ute; and  this  for  the  best  of  reasons.  In  the  common 
case  of  agents,  trustees,  and  factoid,  the  creditor  can 
easily  place  himself  in  the  shoes  of  the  absconding 
debtor,  and  prosecute  his  claim  without  inconvenience 
to  the  garnishee.  But  such  would  not  be  the  case  with 
an  executor.  It  would  not  only  embarrass  and  delay 
the  settlement  of  estates,  but  would  often  draw  them 
from  courts  of  probate,  where  they  ought  to  be  settled, 
before  the  courts  of  common  law,  which  have  no  power 
to  settle  his  accounts.  Such  an  interference  might  pro- 
duce much  inconvenience,  and  prevent  the  executor 
from  executing  his  office  as  the  law  directs."  *^'-*  "An 
executor  or  administrator  is,  to  a  certain  extent,  an 
officer  of  the  law,  clothed  with  a  trust  to  be  performed 
under  prescribed  regulations.     It  would  tend  to  dis- 

«»  Wlnchell  v.  Allen,  1  Conn.  385. 


•585  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION".        §  131 

tract  and  embarrass  these  officers  if— iu  addition  to  the 
ordinary  dnties  which  the  law  imposes,  of  themselves 
often  multiplied,  arduous,  and  responsible — they  were 
■drawn  into  conflicts  created  by  interposition  of  cred- 
itors of  legatees,  and  compelled  to  withhold  payment 
of  legacies  without  suit;  to  sus])end  indefinitely  the  set- 
tlement of  estates;  to  attend,  perhaps,  to  numerous 
rival  attachments;  to  answer  interrogatories  on  oath, 
and  to  be  put  to  trouble  and  expense  for  the  benefit 
of  third  persons  in  no  way  connected  with  the  estate 
nor  within  the  duties  of  their  trust."  "*"*** 

When  the  share  of  a  creditor,  heir,  legatee,  ward,  or 
other  person  entitled  to  moneys  in  the  hands  of  an 
administrator,  executor,  or  guardian  has  been  settled 
by  the  court  and  ordered  to  be  paid,  it  is  no  longer  re- 
garded as  in  custody  of  the  law.  The  right  to  it  has 
become  fixed,  absolute,  and  capable  of  enforcement  by 
action  at  law.  It  may,  therefore,  be  garnished. ^^^  In 
some  of  the  states  the  right  to  garnish  moneys  in  the 
hands  of  executors  and  administrators  has  been  con- 
ferred by  statute.^^  It  has  also,  in  a  few  instances, 
and  contrary  to  a  long  line  of  authorities,  been  affirmed 
to  exist  in  the  absence  of  special  statutory  provisions. 
Thus,  in  Alabama  and  Indiana,  an  unascertained  dis- 
tributive share  in  an  estate  can  be  bound  by  garnish- 
ment while  in  the  hands  of  the  executor.*^^     In  New 

440  Shewell  v.  Keen,  2  Whart.  3.39,  30  Am.  Dec.  20(1. 

441  Richards  v.  Grifjss.  Itj  Mo.  410,  57  Am.  Dec.  240;  Adams  v. 
Barrett.  2  N.  II.  374;  Estate  of  Nerac.  3.")  Cal.  302.  9.">  Am.  Dec.  Ill; 
Fltchett  V.  Dolbee,  3  Harr.  (Del.)  267;  Parks  v.  Cusbman.  9  Vt.  320; 
McCreary  v.  Topper.  10  Pa.  St.  419;  Bank  of  Chester  v.  Ralstou.  7 
Pa.  St.  4S2. 

442Holman  v.  Fisher.  49  Miss.  472. 

443  Terry  v.  Lindsay.  3  Stew.  &  P.  317:  Stnitton  v.  Ham,  S  Iiul. 
84,  »>.^  Am.  Dec.  7i')4;  Tillinshast  v.  .Tnlmson.  .">  Ala.  r)14;  Moore  v. 
fitaintou,  22  Ala.  834;  Jackson  v.  Shipman,  28  Ala.  488. 


§131        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  58& 

Hampshire,  an  administrator  of  a  solvent  estate  can  be 
held  as  the  trustee  of  a  person  having  a  claim  against 
such  estate,  though  such  claim  has  never  been  pre- 
sented to  such  administrator  for  allowance.***  In 
Massachusetts,  an  executor  or  administrator  may  now 
be  summoned  and  charged  as  the  trustee  of  an  heir, 
legatee,  or  creditor  of  the  deceased,  before  distribution 
of  the  estate,  and  before  it  can  be  known  what  there 
will  be  to  distribute.**^  In  Georgia,  an  administrator 
may  be  summoned  as  a  garnishee  when  more  than  a 
year  has  elapsed  since  his  appointment.**"  In  Pennsyl- 
vania, a  legacy,  and  also  a  distributive  share  in  an  es- 
tate, may  be  reached  by  garnishment  before  the  settle- 
ment of  the  estate.**' 

AVhat  we  have  said  in  this  section  has  been  in  refer- 
ence to  attempts  to  reach  the  interests  of  heirs,  credi- 
tors, or  legatees  in  property  in  the  hands  of  executor;s^ 
or  administrators,  under  writs  against  such  heirs,  credi- 
tors, or  legatees.  But  there  may  be  judgments  against 
executors  or  administrators  in  their  official  capacity,  or 
it  may  happen  that  a  judgment  entered  in  the  lifetime 
of  the  defendant  remains  unsatisfied  at  his  death.  In 
either  case,  satisfaction  may  be  sought  out  of  the  assets, 
of  the  deceased.  The  administration  of  these  assets  is 
now  chiefly  confided  to  the  surrogate  and  probate 
courts;  and  judgments,  except  where  they  are  liens  on 
specific  property  of  the  deceased,  are  generally  satisfied 

444  Qnicrg  V.  Kittredge.  18  N.  H.  137. 

445  Wheeler  v.  Bowen,  20  Pick.  5G.3;  Ilolbrook  y.  Waters,  10  Pic-lw 
354;  Boston  Bank  v.  Minot,  3  Met.  507;  Cady  v.  Comey,  10  Met. 
459;  Hoar  v.  Marshall,  2  Gray,  251. 

446  Sclinan  v.  Millikin,  28  Ga.  36G. 

447  Lorenz  v.  King,  38  Pa.  St.  93;  Sinniekson  v.  Painter.  32  Pa.  St. 
384;  Gofhenaur  v.  Hostettcr,  18  Pa.  St.  414;  Baldy  v.  Brady,  15- 
Pa.  St.  103. 


5S7  rEKSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  131 

in  the  due  course  of  administration,  and  not  by  levy 
and  sale  under  execution.  Neither  the  common  law 
nor  any  of  the  statutes  regulating  the  settlement  of  t  he- 
estates  of  deceased  persons  will  permit  an  execution 
against  an  administrator  or  executor,  personally,  to  be 
levied  on  property  held  byhim  in  his  ollicial  capacity.'"*** 
On  the  other  hand,  while  an  executor  or  administrator 
may,  by  misconduct  in  wasting  or  appropriating  the 
assets  of  the  estate,  become  personally  responsibh^  to 
the  creditors,  an  execution  against  him  in  his  official 
capacity  does  not,  in  the  absence  of  such  misconduct, 
justify  any  interference  with  his  private  property.'"'* 
Where  the  statute  has  not  restricted  the  right  to  issue 
an  execution  and  to  satisfy  it  out  of  the  assets  of  an 
estate,  it  may,  as  a  general  rule,  be  levied  upon  the 
same  property  as  if  the  judgment  debtor  were  still 
surviving.'*'^**  Hence,  it  may  be  satisfied  out  of  prop- 
erty conveyed  to  hinder,  delay,  or  defraud  the  judg- 
ment creditor;'*'*^  or  out  of  lands  devised,  and  by  the 
devisees  conveyed  to  third  persons;'**'^  or  out  of  lands 
partitioned  among  the  heirs.'*^^  The  assets  of  the 
deceased  may  be  taken,  whether  inventoried  ^^^  by  the 

448  Farr  v.  Newman,  4  Term  Kep.  G21;  McLeod  v.  Drnmmond,  17 
Ves.  168;  Quick  v.  Staines.  1  Bos.  &  P.  295;  Satterwhite  v.  Carson. 

3  Ired.  549;  Lessing  v.  Yertrees,  32  Mo.  431,  oveiTuling  Lecompte  v. 
Searjreant.  7  Mo.  351,  and  Thomas  v.  Relfe.  9  Mo.  377. 

4*9  In  Avorott  v.  Thompson,  15  Ala.  G78,  it  is  held  tliat  an  exern- 
tion  against  A  as  administrator  of  R,  but  commandins:  tlio  orticer 
to  levy  on  the  goods  of  A,  authorizes  a  levy  on  the  goods  of  the 
latter. 

460  Clark  v.  May.  11  Mass.  233;  Beall  v.  Osbourn.  30  Md.  S. 

451  Drinkwater  v.  Drinkvrater,  4  Mass.  353;  Clark  v.  Ilardiman, 
2  tieigh,  377;  Chamberlayne  v.  Temple,  2  Rand.  .".95.  14  Am.  Dec. 
786. 

452  Gore  V.  Brazier,  3  ^rass.  523.  3  Am.  Deo.  182;  Bigelow  v.  Jones, 

4  Mass.  512;  Wyman  v.  Brigdeu,  4  Mass.  150. 

453  Nowell  V.   Bragdon,  14  Me.  320. 

454  Weeks  v.  Gibbs,  9  Mass.  74. 


§  131        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  588 

administrator,  or  not.'*^^  In  Virginia,  a  legacy  deliv- 
ered to  a  legatee,  with  the  assent  of  the  executor  or  ad- 
ministrator, is  thereby  placed  beyond  the  reach  of  an 
execution  against  the  assets  of  the  estate."*^^  This  rule, 
though  once  maintained  in  Mississippi,  "^^^  was  soon 
afterward  abandoned.*^^ 

The  question  of  the  liability  to  execution  of  personal 
property  in  the  hands  of  the  guardian  of  a  minor  or 
other  incompetent  person  requires  further  considera- 
tion. That  moneys  claimed  to  be  due  from  a  guardian 
to  his  ward  cannot  be  garnished  is  generally  conceded, 
because  the  court  appointing  the  guardian  has  juris- 
diction to  settle  his  accounts,  and,  until  they  are  settled, 
either  in  that  or  some  other  court  of  competent  juris- 
diction, it  cannot  be  known  whether  a  liability  exists 
in  favor  of  the  ward  or  not.  The  title  to  the  ward's 
property,  whether  real  or  personal,  does  not  vest  in  the 
guardian,  and,  hence,  actions  at  law,  whether  in  favor 
of  or  against  a  minor  or  other  incompetent  person, 
should  be  prosecuted  in  his  name,  process  being  served 
on  the  guardian  when  the  incompetent  is  the  defend- 
ant, and  the  guardian  being  required  to  manage  the 
action  by  prosecuting  or  defeuiiing  it  for  the  benefit  of 
his  ward.  If  a  judgment  is  recovered  against  an  in- 
competent person,  execution  may,  in  the  absence  of 
statutes  declaring  the  contrary,  be  issued  against  him 
and  levied  upon  his  property.  Such  property  does  not 
appear  to  be  within  the  custody  of  the  law  so  as  to 

455  Prescott  V.  Tarbell,  1  Mass.  204. 

456  Burnely  v.  Lambert,  1  Wash.  (Va.)  308;  Randolph  v.  Randolph. 
6  Rand.  194;  Dunn  v.  Amey,  1  Leigh.  472;  Sampson  v.  Bryce,  5 
Munf.  175. 

457  Turner  v.  Chambers,  10  Smedes   &  M.  308,  48  Am.  Doc.  7.")1. 

458  Smith  V.  State,  13  Smedes  &  M.  140;  A'auhouten  v.  Kelly,  6 
Smedes  &  M.  440. 


6S9  rEllSONAL  rKOl'KllTY  .SUBJECT  TO  EXKCL'TIOX.         §  \:'.2 

inhibit  or  avoid  such  levy,'*'^"  If,  however,  the  proj)- 
erty  of  a  person  under  guardianship  is  in  possession  of 
the  court,  and  wliether  such  possession  has  actually 
been  assumed  or  not,  if  tlie  court  has  authority  to  take 
his  property  and  apply  it  to  his  support  or  that  of  his 
family,  notwithstanding  the  claims  of  his  creditors, 
then  they  cannot,  by  taking  out  and  levying  an  execu- 
tion, deprive  the  court  of  this  power  or  remove  the 
property  from  the  possession  of  its  officers.'*"" 

§  132.  Moneys  and  Property  in  the  Hands  of 
Federal,  State,  or  County  Officers  are  also  exempt 
from  execution  or  garnishment  against  a  defendant  to 
whom  they  may  be  due.  In  the  case  of  Buchanan  v. 
Alexander,  4  How.  20,  attachments  issued  against  cer- 
tain seamen,  and  were  laid  on  money's  due  them  as 
wages,  and  in  the  hands  of  the  purser  of  the  frigate 
Constitution.  He,  by  order  of  the  Secretary  of  the 
Navy,  disregarded  the  attachments,  and  paid  over  the 
money  to  the  seamen.  Judgment  having  been  entered 
ag-ainst  the  purser,  an  appeal  was  taken  to  the  supreme 
court  of  the  United  States,  where  a  reversal  was  ob- 
tained, and  the  following  opinion  given:  "The  impor- 
tant question  is,  whether  money  in  the  hands  of  the 
purser,  though  due  to  the  seamen  for  wages,  was  at- 
tachable. A  purser,  it  would  seem,  cannot,  in  this 
respect,  be  distinguished  from  any  other  disbursing 
agent  of  the  government.  If  the  creditors  of  these 
seamen  may,  by  process  of  attachment,  divert  the  pub- 
lic money  from  its  legitimate  and  appropriate  object, 
the  same  thing  may  be  done  as  regards  the  pay  of  our 

*59  Sanford  v.  Pliillips.  08  ^Fe.  i?A:  Crymes  v.  Day.  1  Bailey  L. 
320;  Adriance  v.  Brooke.  1.3  Tex.  270. 

*60  In  re  Winkler,  L.  K.  (1S9G)  2  Ch.  519;  lu  re  I'iuk,  L.  R.  23  Ch. 
D.  581. 


§  132       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  590 

officers  and  men  of  the  army  and  of  the  navy;  and  also 
in  every  other  case  where   the   public   funds   may  be 
placed  in  the  hands  of  an  agent  for  disbursement.     To 
state  such  a  principle  is  to  refute  it.     No  government 
can  sanction  it.     At  all  times  it  would  be  found  embar- 
rassing, and    under  some  circumstances    it   might  be 
fatal  to  the  public  service.     The  funds  of  the  govern- 
ment are  specifically  appropriated  to  certain  national 
objects,  and  if  such  appropriations  may  be  diverted  and 
defeated,  by  state  process  or  otherwise,  the  functions  of 
the  government  may  be  suspended.     So  long  as  money 
remains  in  the  hands  of   a   disbursing  officer,  it  is  as 
much  money  of  the  United  States  as  if  it  had  not  been 
<lrawn  from   the   treasury.     Until   paid    over   by  the 
agent  of  the  government  to  the  person  entitled  to  it,  the 
fund  cannot,  in  any  legal  sense,  be  considered  a  part  of 
his  elf  ects.    The"  purser  is  not  the  debtor  of  the  seamen." 
(loods  being  imported    into    the    United    States    are, 
'-from  the  moment  of  their  arrival  in  port,  in  legal  con- 
templation, in  custody  of  the  United  States."    "Now,  an 
attachment  of  such  goods  by  a  state  officer  presupposes 
a  right  to  take  the  possession  and  custody  of  those 
goods,  and  to  make  such  possession  and  custody  exclu- 
sive.    If  the  officer  attaches  on  mesne  process,  he  has 
a  right  to  hold  the  possession  to  answer  the  exigency 
of  that  process.     If  he  attaches  upon  an  execution,  he 
is  bound  to  sell  or  may  sell  the  goods  within  a  limited 
period,  and  thus  virtually  displace  the  custody  of  the 
United  States.     The  act    of    Congress    recognizes  no 
such  authority,  and  admits  of  no  such  exercise  of  right." 
"In  short,  the  United   States,   having   a   lien   on   the 
goods  for  the  payment  of  the  duties  accruing  thereon, 
and  being  entitled  to  a  virtual  custody  of  them  from  the 
time  of  their  arrival  in  port  until  the  duties  are  paid  or 


691  PERSONAL  PROrERTY  SUBJECT  TO  EXECUTION.        §  132 

secured,  any  attachment  by  a  state  officer  is  an  inter- 
ference with  such  lien  and  right  of  custody;  and,  being 
repugnant  to  the  laws  of  the  United  States,  is  void."  '^"^ 
The  same  reasoning  applies  to  property  in  bonded  ware- 
houses of  the  United  States,  upon  wliich  moneys  are 
<lue  for  internal  revenue  taxes.  It  is  in  custody  of  the 
law,  and  can  neither  be  reached  by  direct  seizure  nor 
by  garnishment,'***^  Proceedings  by  way  of  garnish- 
ment against  either  a  state  or  the  United  States  are 
manifestly  inadmissible,  on  other  grounds.  Thus,  the 
only  mode  in  which  a  garnishment  can  be  made  effec- 
tive is  by  the  entry  of  judgment  for  the  debt  garnished. 
Rut  the  United  States  and  each  state  thereof  is  a  sover- 
eign, and  not  subject  to  be  called  before  its  courts,  ex- 
cept in  cases  where  it  has  expressly  assented  to  their 
assuming  jurisdiction.  Xor  will  either  of  these  sover- 
eigns permit  their  immunity  from  the  process  of  their 
courts  to  be  evaded  "by  ignoring  the  state  in  their  suits, 
and  proceeding  directly  against  the  officer  having  the 
custody  of  the  moneys  sought  to  be  reached."  Hence, 
for  want  of  power  to  enter  judgment,  a  garnishment 
against  a  state  or  against  the  United  States  is  neces- 
sarily ineffectual.'***"^  Another  very  serious  objection  to 
the  garnishment  of  a  state  or  county,  or  of  the  United 
States,  or  of  any  officer  of  either,  is  its  probable  inter- 
ference with  the  administration  of  the  government.  It 
is  not  consistent  with  the  state's  "interests,  nor  the 
proper  administration  of  public  affairs,  that  her  officers 
shall  be  arrested  iui  their  public  duties  and  required  to 

461  Harris  v.  Donni,  3  Pet.  30-i. 

462  May  V.   Hoaglan,  9  Bush.  171;  Fischer  v.  Dandistal.  9  Fed. 
Rep.  145;  McCullou?:h  v.  Larjre,  20  Fed.  Rep.  309. 

4C3  Tracy  v.  Hornbuckle,  8  Bnsh,  336;  Tunstall  v.  Worthlngton. 
Hemp.  GG2;  Rollo  v.  Andes  Ins.  Co.,  23  Gratt.  511,  14  Am.  Rep.  147. 


§  132       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  5U2 

answer  before  the  courts  for  funds  or  securities  com- 
mitted to  their  custody  for  a  specific  purpose,  under 
authority  of  public  law.  The  treasurer  of  state  is  one 
of  the  most  important  officers  of  the  commonwealth,, 
with  grave,  arduous,  and  difficult  duties  to  perform.  It 
is  impossible  to  foresee  the  mischiefs  and  embarrass- 
ments that  will  ensue,  if,  in  addition  to  these  duties,  he 
is  to  be  involved  in  the  conflict  of  creditors,  to  answer 
innumerable  rival  attachments,  employ  counsel,  answer 
interrogatories,  and  otherwise  consume  time  and  at- 
tention which  should  be  devoted  exclusively  to  public 
interests."  ^*^*  When  an  attempt  is  made  to  garnish 
the  salary  of  any  public  officer,  the  further  objection  ex- 
ists that  his  continuance  in  the  service  of  the  public 
may  be  dependent  on  his  being  able  to  regularly  draw 
such  salary  and  devote  it  to  the  maintenance  of  himself 
and  family,  and  that  the  interest  of  the  public  is  para- 
mount in  importance  to  that  of  the  creditors.  For  these 
various  reasons  it  has  uniformly  been  held  that  money 
in  the  hands  of  state  ^^^  or  county  officials,  *^^  whether 

464  Rollo  T.  Andes  Ins.  Co.,  23  Gratt.  509,  14  Am.  Rep.  147. 

405  Divine  v.  Harvie,  7  T.  B.  Mon.  439.  18  Am.  Dec.  194;  Bank  of 
Tennessee  v.  Dibroll,  3  Sneed,  379;  Wild  v.' Ferguson,  23  La.  Ann. 
752;  Stillman  v.  Isham,  11  Conn.  124;  McMeekin  v.  State,  4  Eng. 
553;  Train  v.  Herrick,  4  Gray.  .534;  Swepson  v.  Turner.  76  N.  C. 
115;  Wilson  v.  Bank  of  La.,  55  Ga.  98;  Lodor  v.  Baker,  39  N.  J.  L. 
49;  Dewey  v.  Garvey,  1.30  Mass.  80. 

466  Nathans  v.  Satterlee,  18  Abb.  N.  C.  310;  State  v.  Tyler,  14 
Wash.  495,  53  Am.  St.  Rep.  878;  Riggin  v.  Hilliard,  56  Ark.  476,  .3.5 
Am.  St.  Rep.  113;  Sterner  v.  Bd.  of  County  Commrs.,  5  Colo.  App. 
579;  Dotterer  v.  Bowe.  84  Ga.  709;  Stevens  v.  St.  Mary's  T.  School, 
144  111.  336,  36  Am.  St.  Rep.  438;  Merrell  v.  Campbell,  49  Wis.  5.35, 
35  Am.  Rep.  785;  State  v.  Eberly.  12  Neb.  616;  Edmoudson  v.  De 
Kalb  Co.,  51  Ala.  103;  Gilman  v.  Contra  Costa  County,  8  Cal.  52. 
68  Am.  Dec.  290;  Garnishees  v.  Root.  8  Md.  95;  Wallace  v.  Lawyei. 
54  Ind.  501,  23  Am.  Rep.  661;  contra:  Adams  v.  Tyler.  121  Mass. 
380:  Geer  v.  Chapel.  11  Gray.  18;  Ward  v.  Hartford  Co..  12  Conn. 
409;  Chealy  v.  Brewer,  7  Mass.  259.    In  this  last  case  the  court  said:; 


693  TEUSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        g  132 

for  the  purpose  of  paying  salary  due  an  officer  or  em- 
ploy^,  or  of  satisfying  any  other  claim,  is  not  subject 
to  execution  nor  garnishment.  The  doctrine  is  also  ap- 
plicable to  money  in  the  hands  of  school  directors,  or  of 
their  treasurer,  and  due  to  teachers  for  services  per- 
formed in  the  public  schools.*^'^ 

The  decided  weight  of  authority  affirms  that  counties 
are  not  subject  to  garnishment  unless  expressly  made 
so  by  statute,  and,  furthermore,  that  general  words  in 
a  statute,  purporting  to  authorize  the  garnishment  of 
persons  or  corporations,  will  not  be  held  to  apply  to 
counties  or  other  quasi-municipal  corporations.'**'^  It 
must  be  conceded  that  Waterbury  v.  Commissioners,  10 
Mont.  512,  24  Am.  St.  Rep.  67,  is  in  conflict  with  the 
rule  as  thus  stated.  The  statutes  of  Montana  declare 
that  all  persons  having  in  their  possession  or  under 
their  control  any  credits  or  other  personal  property  be- 
longing to  the  defendant  or  owing  debts  to  him,  shall 
be  liable  to  process  of  garnishment,  and  that  the  word 

"A  public  officer,  who  has  money  in  his  hands  to  satisfy  a  demand, 
but  which  is  upon  him  merely  as  a  public  oflicer,  cannot  for  that 
cause  be  adjudged  a  trustee.  A  contrary  decision  would  be  mis- 
chievous, as  will  appear  from  this  sinjErle  cause:  that  it  would  sus- 
pend, during  the  pendency  of  an  action,  a  possibility  of  settling 
the  accounts  of  the  officer,  and.  it  may  be  added,  that  it  would 
unreasonably  compel  him  to  attend  courts  in  every  county  of  the 
commonwealth." 

4ti7  Bulldey  v.  Eckert,  3  Pa.  St.  3G8,  45  Am.  Dec.  650;  Millison  v. 
Fisk,  43  111.  112;  Ross  v.  Allen,  10  N.  H.  96;  Bivens  v.  Harper,  .50 
ni.  21;  Allen  v.  Russell.  78  Ky.  105;  Kein  v.  School  Dist,  42  Mo. 
App.  460;  Chamberlain  v.  Wattors,  10  Utah,  298;  Skelly  v.,  Westmin- 
ster School  Dist..  103  Cal.  G52;  School  Dist.  v.  Gage,  39  Mich.  481, 
33  Am.  Rep.  421;  Dollman  v.  Moore,  70  Miss.  267;  Spencer  v.  School 
Dist..  11  R.  I.  537. 

*68  Wallace  v.  Sawyer,  54  Ind.  506,  23  Am,  Rep.  661;  Switzer  v. 
Wellington,  40  Kan.  250,  10  Am.  St.  Rep.  196;  Mayor  v.  Root,  8 
Md.  95,  63  Am.  Dec.  692;  Kein  v.  School  Dist.,  42  Mo.  App.  460; 
Chamberlain  v.  Watters,  10  Utah,  298. 
Vol.  I.— 38 


«    I8i2       TER^OXAL  PROPERTY  SUBJECT  TO  EXECUTION.  594 

''person"'  may  be  applied  to  bodies  politic  dnd  corpo- 
rate, and  that  counties  are  bodies  ^>olitic  and  corporate. 
The  supreme  court  of  that  state  hence  reached  the  con- 
clusion that  counties  are  subject  to  garnishment.  The 
court  was  also  of  the  opinion  that  it  was  not  true  that 
principles  of  public  policy  forbade  the  garnishment  of 
counties,  saying:  "Eeturning  to  the  case  at  bar,  we  can- 
not agree  that  there  is  any  reason  why  the  great  public 
duties  of  a  county  need  be  imperfectly  x)erformed,  or 
that  its  business  is  in  any  danger  of  derangement,  if  it 
be  compelled,  by  process  of  a  court,  to  pay  the  salary  of 
a  servant  to  that  servant's  creditors.  The  county  has 
no  suit  to  defend,  no  counsel  to  employ,  no  witnesses  to 
collect  and  pay.  It  has  no  burden  cast  upon  it,  and  no 
duty  to  perform,  except  to  act  as  temporary  stake- 
holder, to  await  the  determination  of  a  court,  in  an 
action  in  which  the  county  has  no  interest.  The  argu- 
ment of  public  policy  as  to  inconvenience  to  the  county 
and  its  officers  does  not  reach  our  mind  with  sufficient 
force  to  imi^air  another  view  of  law  and  of  right  that  is 
recognized  throughout  the  civilized  world ;  that  is,  .that 
debtors  should  pay  their  debts.  This,  of  course,  with 
the  modification  that  the  means  of  livelihood  should  be 
left  to  the  debtor,  which  view  is  embodied  in  the  laws 
of  exemption  from  execution,  which  in  this  state  are 
very  liberal.  The  debtor's  earnings  for  thirty  days 
prior  to  the  levy  of  a  writ  are  exempt  from  seizure. 
The  servant  of  the  county  is  thus  secured  in  his  sup- 
por-t,  if  he  earns  it,  and  the  county  is  not  liable  to  lose 
the  services  of  competent  officers.  Indeed,  it  has  never 
been  observed  that  a  county  has  difficulty  in  obtain- 
ing employees  to  do  its  work,  and  the  county  may 
surely  obtain  as  good  service  from  those  who  pay  their 
debts  as  from  those  who  avoid  such  payment,  and  are 


61)5     PERSONAL  TROPERTY  SUBJECT  TO  EXECUTION.   §  133 

protected  in  the  avoidance  by  the  unsatisfying  doctrine 
of  public  policy.  We  conclude  tli<'i-(*  is  no  substantial 
argument  from  public  policy  which  requires  us  to  read 
the  law  as  to  garnishment  of  counties  differently^  from 
what  its  letter  seems  to  declar(\  Counties  are  not  ex- 
empted from  garnishment  by  statute.  On  the  contrary, 
their  liability  to  the  process  is  within  the  letter  of  the 
law.  We  find  nothing  in  the  spirit  of  the  doctrine  of 
public  policy  which  induces  us  to  add  to  or  take  from 
the  letter." 

§  133.  Money  Held  by  Officers  of  Municipal  Cor- 
porations has,  in  Connecticut,  *^^  Iowa,  *^**  Ken- 
tucky,'^^^  Rhode  Island,^"-  New  ITampshire,  ^''^ 
Ohio,  ^''*  been  held  subject  to  garnishment  under  writs 
against  the  persons  to  whom  such  money  was  due.  In 
the  three  last-named  states,  the  statute  authorized  the 
garnishment  of  any  corporation  possessed  of  any  money 
of  the  debtor.  These  terms  were  considered  to  be  so 
comprehensive  as  to  embrace  municipal  as  well  as  other 
corporations.  In  the  two  other  states  named,  no  stress 
was,  in  the  decisions,  laid  upon  any  special  or  peculiar 
statutory  provisions.  In  Colorado,  municipal  corpora- 
tions have,  by  statute,  been  subjected  to  garnish- 
ment.*''**   In  New  York  and  Texas   they   have  been 

469  p.rny  V.  Wallinsford,  20  Conn.  41G. 

470  Wales  V.  City  of  Muscatine.  4  Iowa.  302.  But  the  statute  has 
now  taken  away  the  risht  to  jrarnish  a  municipal  corporation  in 
this  state.     Clapp  v.  Walker,  25  Iowa,  31.5. 

4T1  Kodman  v.  ISIussolman,  12  Bush,  354,  23  Am.  Rep.  724. 

472  W^ilson  V.  Lewis.  10  R.  I.  285. 

473  Whidden  v.  Drake,  5  N.  H.  13;  Wendell  v.  Price.  13  X.  H.  502: 
but  we  know  not  how  to  reconcile  these  decisions  with  Brown  v 
Heath.  45  N.  H.  108. 

474  City  of  Newark  v.  Funk.  15  Ohio  St.  402.  under  statute  au 
thorizinsr  garnishment  of  bodies  politic. 

474a  City  of  Denver  v.  Brown,  11  Colo.  .337. 


§  133       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  59& 

held  subject  to  garnishment  in  the  absence  of  any 
statute  exempting  them  therefrom,  and  the  courts 
of  those  states  deny  that  any  sufficient  reason  ex- 
ists, founded  upon  public  policy,  for  denying  the 
right  to  proceed  by  garnishuient  against  munici- 
palities.^^® Upon  principle,  there  is  no  reason  why 
the  rule  applicable  to    a   state   or  county  official,  or 

475  In  Mayor  v.  Horton,  38  N.  J.  L.  88,  91,  in  deciding  that  a  mu- 
nicipal corporation  was  subject  to  garnishment,  the  court  said: 
"These  public  corporations  have,  with  legislative  sanction,  a  very 
liberal  power  of  contracting  debts,  and,  in  many  instances,  are  large 
borrowers  of  money.  A  public  policy  which  would  place  these  large 
sums  wholly  beyond  the  reach  of  creditors  is  not  so  clear  as  ta 
justify  this  court  in  denying  to  suitors  the  beneficial  remedy  by 
attachment  against  this  class  of  debtors."  "No  one,"  says  Willie, 
C.  J.,  in  Laredo  v.  Nalle,  65  Tex.  359,  "should  be  allowed  to  place 
his  property  beyond  the  reach  of  his  creditors  by  keeping  it  in  the 
possession  of  a  municipal  corporation."  "The  argument,  drawn  from 
the  impolicy  and  inconvenience  of  calling  off  municipal  officers  from 
their  duties  to  answer  writs  of  garnishment,  can  be  used,"  said  the 
chief  justice,  "with  equal  force  to  show  that  no  suit  whatever  should 
be  allowed  against  such  corporations.  The  officers  of  a  city  are 
drawn  from  their  duties  to  malie  answer  as  much  in  the  one  case 
as  in  the  other.  Yet,  we  find  them  constantly  called  upon  to  an- 
swer suits  for  debt  or  for  damages  caused  by  the  alleged  neglect 
of  the  city's  agent,  or  to  writs  of  mandamus  issued  to  compel  them 
to  perform  their  duties.  To  answer  to  these  proceedings  and  prop- 
erly defend  them,  the  officers  are  frequently  forced  to  leave  their 
posts  of  duty,  and  to  continue  in  attendance  upon  court  for  days, 
or  weeks,  if  necessary,  no  matter  how  inconvenient  it  may  be  to 
the  city  government  to  dispense  with  their  services.  The  policy 
of  keeping  the  operations  of  municipal  government  free  from  the 
interference  of  lawsuits  must  yield  to  the  more  important  policj' 
of  securing  to  the  creditors  and  injured  parties  payment  for  their 
debts  and  redress  for  their  wi-ongs,  to  be  enforced  by  the  appro- 
priate process  of  the  law.  It  is  not  the  ])olicy  of  the  law  that  Ihe 
citizen  should  be  wronged,  rather  than  that  the  city  government 
should  suffer  inconvenience.  Little  difference,  if  an/,  exists  between 
the  inconvenience  of  answering  to  an  ordinary  suit  and  that  of  an- 
swering to  a  writ  of  garnishment.  The  latter  is  nothing  more  than 
a  suit  by  the  plaintiff  in  the  writ  against  the  city,  the  matter  in 
dispute,  if  there  be  any  dispute  at  all,  being  the  alleged  Indebted- 
ness of  the  city  to  the  debtor  of  the  plaintiff.  It  is  not  required  to 
take  i)art  in   the  controversy  between  the  plaintiff  and  the  party 


697  i'EIUSOXAL  PIIOPERTY  SUBJECT  TO  EXECUTION.        §  133 

to  a  treasurer  of  a  board  of  school  directors,  should  not 
also  be  applied  to  officers  of  towns  and  cities.  They 
are  all  mere  custodians  of  public  moneys,  with  their 
duties  and  responsibilities  created  and  prescribed  by 
the  laws  creating  their  respective  offices,  and  prescrib- 
ing the  duties  thereof.  "As  municipal  corporations  are 
parts  of  the  state  government,  exercising  delegated 
political  i^owers  for  public  purposes,  the  rule  which 
prevents  an  attachment  from  being  levied  upon  a  claim 
of  one  state  officer  upon  funds  in  the  hands  of  another, 
applicable  to  its  payment,  must  apply  with  equal  force 
to  a  case  like  the  present.  If  an  argument  against  the 
right  to  attach,  based  upon  inconvenience,  can  have  an 
influence,  in  any  case,  it  surely  should  do  so  where  the 
officers  of  a  large  city  are,  necessarily,  very  numer- 
ous." ^''^  Where  an  attempt  was  made  to  attach  money 
due  from  a  city  to  a  police  officer  for  his  services,  the 

for  whose  debt  it  is  garnished.  It  cannot,  therefore,  be  said  that, 
in  requiring  a  city  to  answer  to  a  writ  of  garnishment,  it  is  neces- 
sarilj'  drawn  into  a  controversy  with  which  it  has  no  concern. 
Neither  is  the  public  money  thereby  diverted  from  the  channel  in 
which  it  should  How.  A  payment  to  the  plaintiff  in  garnishment 
is,  in  effect,  a  payment  to  the  original  creditor  of  the  city.  Public 
policy  may  demand  that  a  fund  set  apart  for  erecting  a  public 
building  should  not  be  taken  for  the  debt  of  the  person  contracting 
to  do  the  work  during  the  progress  of  its  construction,  for  this 
may  prevent  its  completion.  But.  when  the  work  is  finished,  and 
the  money  earned,  and  standing  to  the  credit  of  the  contractor  with 
the  city,  it  should  be  subject,  like  any  other  property,  to  the  pay- 
ment of  his  debts."     Laredo  v.  Nalle.  (m  Tex.  .359.  361. 

4T6  Holt  V.  Experience,  26  Ga.  113;  McLellan  v.  Young.  54  Ga. 
399.  21  Am.  Rep.  276;  iloore  v.  Mayor.  8  Heisk.  S-IO;  Memphis  v. 
Laski,  9  Heisk.  511.  24  Am.  Rep.  327:  Buffham  v.  City  of  Racine, 
26  Wis.  449:  Mayor  of  Baltimore  v.  Root.  8  Md.  102.  63  Am.  Dec. 
692:  Hawthorn  v.  City  of  St.  Louis.  11  Mo.  59.  47  Am.  Dec.  141; 
Fortune  v.  City  of  St.  Louis,  23  Mo.  2.'59:  Merwin  v.  Chicago,  45  111. 
1.33,  92  Am.  Dec.  204;  Triebel  v.  Colburn.  64- 111.  376;  McDougal  v. 
Hennepin  Co..  4  Minn.  184;  Bradley  v.  Cooper.  6  Vt.  121:  Burnham 
V.  City  of  Fond  du  Lac.  15  Wis.  193.  82  Am.  Dec.  668;  City  of  Erio 
T.  Knapp.  29  Pi.  St.  173.    See  Fellows  v.  Duncan.  13  Met.  332. 


§  133       lERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  598 

supreme  court  of  Alabama  said:  "But  does  not  public 
policy  protect  the  wages  of  a  police  officer  from  attach- 
ment? Money  due  from  a  government  or  state  is  thus 
guarded  for  the  benefit  of  the  public.  The  law  says 
the  state  must  be  permitted  to  select  its  own  officers, 
from  any  condition  or  position  in  society,  and  cannot 
be  made  subject  to  the  power  of  individual  creditors  to 
drive  their  selection  from  service  when  they  choose;  nor 
can  the  creditor  be  permitted  to  paralyze  the  energy,  or 
in  any  way  to  cripple  the  efficiency,  of  a  state's  officer 
by  taking  from  him  the  means  afforded  by  the  state^ 
which  gives  bread  and  clothing  to  himself  and  family. 
The  government  of  a  city  is  a  part  of  the  state  govern- 
ment. It  is  the  exercise  of  a  portion  of  the  state 
sovereignty,  and  should,  in  like  manner,  be  upheld  by 
the  same  public  policy."  ^'"^  Municipal  corporations 
are,  therefore,  held  not  to  be  subject  to  garnishment  in 
the  states  of  Alabama,  Georgia,  Illinois,  Iowa,  Kansas, 
Maine,  Maryland,  ]\rassachusetts,  Minnesota,  Missouri^ 
Nebraska,  Pennsylvania,  Tennessee,  Utah,  Vermont, 
Washington  and  Wisconsin.**''® 

Whether  a  municipal  corporation  may  waive  its  ex- 

477  Mayor  of  Mobile  v.  Rowland,  26  Ala.  501;  Clark  v.  Scbool 
Commissioners,  36  Ala.  621. 

478  Porter  etc.  Co.  v.  Perdue,  105  Ala.  293,  .53  Am.  St.  Rep.  124; 
Leake  v.  Lacey.  05  Ga.  747,  51  Am.  St.  Rep.  112;  Triebcl  v.  Colburn. 
C4  111.  376;  Jenks  v.  Osceola  Tp.,  45  Iowa,  554;  Switzer  v.  Wellington, 
40  Kan.  2.50,  10  Am.  St.  Rep.  196;  First  N.  B.  v.  Ottawa,  43  Kan. 
295;  Buffham  v.  City  of  Racine,  26  Me.  449;  Mayor  of  Baltimor.' 
V.  Root,  8  Md.  102,  63  Am.  Dec.  692;  Hadley  v.  Peabody,  13  Gray. 
200;  Walker  v.  Cook,  129  Mass.  577;  Sandwich  M.  Co.  v.  Kralce,  66 
Minn.  110,  Gl  Am.  St.  Rep.  .'',!)5;  Pendleton  v.  Perkins.  49  Mo.  .565; 
People  V.  Omalia,  2  Neb.  166;  Erie  v.  Knapp,  29  Pa.  St.  173;  Mem- 
phis V.  Laski,  9  Ileisk.  511,  24  Am.  Rep.  327;  Chamberlain  v.  Wal- 
ters, 10  Utah,  298;  Bradley  v.  Cooper,  6  Vt.  121;  Marx  v.  Parker. 
9  Wash.  473,  43  Am.  St.  Rep.  849;  Merrell  v.  Campbell,  49  Wis. 
535,  35  Am.  St.  Rep.  785. 


699  PKilSUNAL  I'UOl'ERTV  SUBJECT  TO  EXECUTION.        §  lU 

emption  from  garnislimeiit  is  a  qucsLion  upou  which 
the  courts  of  the  dillereut  states  decidiuj.;  it  have  not 
agreed.  In  Colorado,  before  the  statute  had  been  en- 
acted making  municipal  corporations  subject  to  gar- 
nishment, it  was  held  that  it  might  waive  its  exemp- 
tion,'*'^**'^wliile  ir)  T^lah  Mic  opjxtsite  view  was  taken.'*''*  ^ 
So,  in  Alabama,  it  has  been  said  that,  if  muni- 
cipal corpoi-ations  "are  not  within  the  statute  at  all, 
no  court  has,  nor  by  consent  can  acquire,  jurisdiction  to 
proceed  against  them  in  this  way,  and,  if  it  is  a  mere 
matter  of  exemption,  the  same  public  policy  which 
gives  life  to  it  is  potent  also  to  prevent  the  officers  and 
agents  for  the  time  being  of  such  corporations  from 
waiving  the  exemption  by  appearing  without  objection 
and  admitting  indebtedness  for  the  corporation.  The 
fact  that  the  money  due  from  a  corporation  to  the  de- 
fendant in  execution  and  sought  to  be  thus  reached  has 
been  segregated  from  the  general  fund  of  the  corpora- 
tion, and  is  held  by  its  treasurer  for  the  specific  pur- 
pose of  paying  a  particular  debt,  does  not  alter  the  case. 
It  is  still  only  a  debt  from  the  corporation  to  the  de- 
fendant, and  the  process  of  garnishment,  whether  nom- 
inally issuing  against  the  officer  or  against  the  corpora- 
tion, is  in  reality  a  proceeding  by  garnishment  against 
the  corporation  itself,  and  not  maintainable,"  "*'" 

§  134.  An  Attorney  at  Law  is,  for  some  purposes,  a 
public  officer.  As  such  officer,  he  is  so  far  under  the 
control  of  the  court  that  it  may,  in  some  instances, 
compel  him  to  perform  gratuitous  services;  and  may,  in 
all  cases,  require  him  to  discharge  the  duties  of  his 
office  faithfully,  honestly,  and  without  any  breach  of 

•♦Tsa  Board  of  Commissioners  v.  Bond,  3  Colo.  411. 

"TsbVnn  Cott.  V.  Pratt.  11  T'tali.  2<t!). 

470  Porter  etc.  Co.  v.  Perdue.  107^  Ala.  203.  '^3  Am.  St.  Pa'p.  124. 


§  135       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  COO 

professional  decorum.  But,  when  an  attorney  collects 
moneys  for  bis  client,  even  by  means  of  a  suit,  such 
money  is  never  treated  as  being  in  custody  of  the  law, 
but  rather  as  money  collected  by  an  agent  for  the 
benefit  of  his  princiiDal.  It  is,  to  the  same  extent,  as 
money  in  the  hands  of  any  other  agent,  liable  to  exe- 
cution."***" 

§  135.  Property  Levied  upon  or  Otherwise  Lawfully 
Taken  into  the  Possession  of  an  Officer  of  the  Court 
is  undoubtedly  in  the  custody  of  the  law,  and,  hence, 
ordinarily  not  subject  to  further  levy  by  any  other 
officer.  By  a  levy  upon  the  goods  of  the  defendant  by 
virtue  of  an  execution  or  attachment,  the  officer  ac- 
quires a  special  property  therein,  entitling  him  to  their 
possession  and  control.  They  are  thereby  placed  in 
the  custody  of  the  law.  Another  officer,  acting  under 
another  writ  of  attachment,  has  no  right  to  interfere 
with  them.  As  he  cannot  reduce  them  into  his  pos- 
session, he  can,  according  to  the  preponderance  of  the 
authorities,  make  no  valid  levy ;  ^^^  but  in  one  case  it 
was  said  that  he  could  levy,  though  he  could  not  re- 
move.^**^     By  this  is   undoubtedly   meant  that  a  levy 

4S0  Riley  V.  Hirst,  2  Pa.  St.  34G;  Staples  v.  Staples.  4  Greeul.  532; 
IStann  v.  Buford,  3  Ala.  812,  37  Am.  Dec.  601;  Tucker  v.  Butts,  ti 
Ga.  580;  Coburn  v.  Ansart,  3  INIass.  319;  Thayer  y.  Sherman.  12 
Mass.  441;  Woodbridge  v.  Morse,  5  N.  H.  519;  Carr  v.  Benedict.  48 
Ga.  431;  White  v.  Bird.  20  La.  Ann.  188.  96  Am.  Dee.  393. 

481  Winegardner  v.  Ilafer,  15  Pa.  St.  144;  Buckey  v.  Suouffer.  10 
Md.  149.  69  Am.  Dec.  129;  Van  Loan  v.  Kline,  10  Johns.  129;  Dubois 
V,  Harcout,  20  Wend.  41;  Moore  v.  Withenburg,  13  La.  Ann.  22; 
Lewis  V.  Buck,  7  Minn.  104,  82  Am.  Dec.  73;  Hartwell  v.  Blssell, 
17  .Johns.  128;  Rogers  v.  Darnaby,  4  B.  Mon.  241;  Taylor  v.  Carryl. 
20  How.  583;  Hamilton  v.  Reedy,  3  McCord.  38;  Hagan  v.  Lucas. 
10  Pet.  400;  The  Oliver  Jordan,  2  Curt.  414;  Pock  v.  Jenness,  7 
How.  612;  Jones  S.  &  P.  Co.  v.  Case,  26  Kan.  299,  40  Am.  Rep.  310; 
Jones  S.  &  P.  Co.  v.  Hentig,  29  Kan.  75. 

*82  Benson  v.  Berry,  55  Barb.  620. 


COl  I'KU.SOXAl.  l'ilUi'i:UTY  fciUliJEUT  TO  EXECUTION.        §  135 

may  be  made  uotwithstanding  a  pre-existing  levy,  pro- 
vidiug  the  possession  of  the  ulhcer  making  the  hrst 
levy  is  not  disturbed  and  no  unseemly  eonfiict  is 
brought  about  between  the  ofificei-s  represent ing  th(? 
two  writs.  In  Arlcansas  and  Missouri  it  is  held  that  a 
levy  may  be  made  without  disturbing  the  possession 
of  the  oflieer  making  the  first  levy,  by  simply  notifying 
him  that  the  property  in  his  possession  is  levied  ui)on, 
subject  to  the  previous  levy  made  by  him.''^-'  AVe  are 
not  aware  of  any  other  states  in  which  a  levy  of  this 
character  has  been  sanctioned  by  the  courts.  This 
mode  of  proceeding  impresses  us  as  worthy  of  legisla- 
tive consideration,  though  we  believe,  except  where  it 
has  received  legislative  approval,  the  courts  are  not 
justified  in  adopting  it. 

There  are  cases  which  strongly  tempt  the  courts  to 
hold  that,  in  exceptional  circumstances,  property  al- 
ready levied  upon  by  one  officer  may  be  subject  to  fur- 
ther levy  by  another  in  those  instances  in  which  the 
officer  making  the  first  levy  does  not  object,  and  also 
where  it  appears  that  the  officer  making  the  second 
levy  does  so  under  a  writ  which,  as  a  lien,  has  a  priority 
over  the  writ  under  which  the  previous  levy  has  been 
made.  We  have  already  considered  this  (juestion,  and 
discovered  the  decisions  in  irreconcilable  conflict  and 
so  infrequent  that  no  rule  upon  the  subject  is  sustained 
by  any  decided  preponderance  of  autliority.  We  think, 
however,  the  better  opinion  is,  that  the  second  levy 
cannot  be  sustained  when  the  goods  are  in  the  lian<ls  of 
an  officer  under  legal  process,  ^-^^  *  except  in  states 
whose  statutes  manifestly  intend  to  authorize  succes- 

■      <^3  Goodbar  v.  Brooks.  57  Ark.  A7^Ct:  Stato  v.  Ciirrnn.  4."  Mo.  Api>. 
^42:  Patterson  v.  Stephenson.  77  Mo.  ^'29:  Bates  v.  Days.  17  Fed. 
Kep.  107;  Brooks  v.  Fry,  45  Fed.  Rep.  770. 
483a  Ante,  §  130 


§  135        PERSONAL  PROPERTY  SUB.TECT  TO  EXECUTION.  GO-^ 

sive  levies  of  writs  upon  the  same  property,  whether 
in  the  hands  of  dillerent  officers  or  not.  Where 
this  exception  prevails,  the  second  levy  must  be 
constructive  in  character  and  effected  merely  by  giving 
notice  to  the  officer  having  the  property  in  his  custody, 
and  not  by  wresting  the  property  from  his  possession. 
Even  if  the  goods  are  taken  from  the  officer  under  a 
writ  of  replevin  and  delivered  over  to  a  third  person, 
they  still  remain  in  custodia  legis,  to  the  extent  that 
they  cannot  be  levied  upon  under  process  against  the 
originarl  defendant.'****  But  the  officer  who  has  levied 
upon  property  may  hold  the  same  to  answer  for  subse- 
quent writs  which  come  into  his  hands  while  the  first 
levy  remains  in  force.  The  mere  receipt  of  the  subse- 
quent writ  operates  as  a  constructive  levy  upon  all 
property  actually  or  constructively  in  his  possession 
under  a  prior  writ.***^  A  levy  by  one  deputy  operates 
as  a  constructive  levy  on  the  same  property  under  a 
subsequent  execution  delivered  to  another  deputy  of 
the  same  sheriff.  And  this  is  true,  although,  before  the 
receipt  of  the  second  writ,  the  property  was  removed 
to  another  state,  and  remained  there  until  after  the 
return  day  of  such  writ."**^  But  an  unauthorized  levy 
does  not  put  property  in  custody  of  law.  Hence,  prop- 
erty seized  by  an  officer  contrary  to  plaintiff's  instruc- 
tions was  held  to  be  liable  to  seizure  under  another 
writ.*«^ 

4«4  Acker  v.  Whltp,  25  Wend.  fil4:  Pihines  v.  Phelps.  P>  Oilm.  455: 
Selleck  v,  Phelps,  11  Wis.  380;  Hagan  v.  Lucas.  10  Pet.  400;  Ward 
V.  W^hitney,  13  Phila.  7;  Bates  Coiinty  National  Bank  v.  Owen,  7!> 
Mo.  429,  Pipher  v.  Forrlyce,  SS  Ind.  4.36. 

4»5  Tan  Winkle  v.  T'dall.  1  Hill.  5.59;  Cresscn  v.  Stout.  1?  .Tohns. 
116.  8  Am.  Dec.  .373:  Birdseye  v.  Uny.  4  Hill.  160;  Collins  v.  Yowens, 
10  Ad.  &:  E.  570:  Bank  of  Lnnsinsburgh  v.  Orary,  1  Barb.  542. 

■•ffi  Russell  V.   dibits.  5  Cow.  390. 

*87  Sherry  v.  Schuyler,  2  Hill,  204. 


603  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  135 

The  clairii  that  property  is  in  the  custody  of  the  law, 
because  it  has  been  taken  by  an  olhcer  professedly  act- 
ing under  a  writ,  may  be  resisted  on  the  ground  that 
the  levy  upon  which  he  relies  is  invalid,  or  the  writ  or 
the  judgment  or  other    proceeding    upon  which  it  is 
founded  is  void.  If  the  levy  is  invalid  and  the  officer  has 
not  obtained  possession  of  the  property,  it  is  clearly  not 
in  legal  custody, and  there  is  no  impediment  to  a  jjroper 
and  valid  levy,  though  made  by  an  officer  acting  under 
a  different  writ.^****     Possibly,  if  a  writ  or  judgment  is 
void,  so  that  an  officer,  if  sued  for  trespass  in  acting 
under  it,  could  not  successfully  justify,  his  possession 
is  not  the  custody  of  the  law,  and,  hence,  does  not  pre- 
vent a  second  levy  by  another  officer.     Indeed,  there  are 
several  cases  asserting,  in  general  terms,  that  "when 
property  is  lawfully  taken  by  virtue  of  legal  process,  it 
is  in  the  custody  of  the  law,  and  not  otherwise."  '*'^'*    It 
would  surely  be  dangerous  to  the  peace  of  the  com- 
munity to  require,  or  authorize,  an  officer  having  a  writ 
to  determine  whether    the    judgment    or    writ  under 
which  another   officer   had    already  made  a  levy  was 
void.     We  doubt  not  the  propriety  of  the  rule  main- 
tained in  the  national  courts  that  property  "levied  on 
by  attachment,  or  taken  in  execution,  is  brought  by  the 
writ  within  the  scope  of  the  jurisdiction  of  the  court 
whose  process  it  is,  and,  as  long  as  it  remains  in  the 
possession  of  the  officer,  it  is  in  custody  of  the  law.     It 
is  the  bare  fact  of  that  possession  under  claim  and  color 
of  that  authority,  without  respect  to  the  ultimate  right, 
to  be  asserted  othenvise  and  elsewhere,  as  already  suffi- 

^RsPump  Co.  V.  Miller.  10.-.  Towa.  r,74.  HI  Am.  St.  Eep.  ?,22:  Front 
St.  eto.  Co.  V.  Dralco.  0.'  Fori.  Rop.  ".."JO. 

^''B  Campbell  v.  Williams.  HO  Towa.  f!-P":  Rnrr  r.  ^fathors.  nl  Mo. 
App.  470;  Gilman  v.  Williams,  7  Wis.  829.  70  Am.  Dec.  219. 


§  135       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  604 

cientlj  explained,  that  furnislies  to  the  officer  complete 
immunity  from  the  process  of  every  other  jurisdiction 
that  attempts  to  dispos-sess  him."  '*'•*'*  If  a  marshal  or 
other  officer  acting  under  a  writ  issued  by  one  of  the 
national  courts  takes  possession  of  property,  claiming 
the  right  to  do  so  under  a  writ  in  his  hands,  but  the 
writ  or  the  proceedings  taken  under  it  are  insufficient 
in  laAv  to  justify  him  in  withholding  the  property  from 
an  officer  of  a  state  court  seeking  to  levy  thereon,  under 
a  writ  against  the  owner  of  the  property,  the  remedy  of 
the  latter  officer  is  to  notify  the  marshal  of  the  writ 
and  of  the  desire  to  levy  it  upon  the  property,  and  if  the 
marshal,  nevertheless,  persists  in  retaining  the  posses- 
sion, and  in  refusing  the  right  to  make  a  levy,  then  ap- 
plication should  be  made  to  the  national  court  under 
whose  writ  the  marshal  claims  the  right  to  act  and  to 
retain  the  possession  of  the  property,  and  if  his  claim  is 
found  to  be  invalid,  the  court  will  take  such  measures 
as  the  justice  of  the  case  may  require  for  the  correction 
of  the  wrong  done  by  the  marshal.^"^ 

Generally  a  court  cannot  bring  before  it,  or  subject  to 
its  jurisdiction,  except  in  proceedings  in  rem,  the  titles 
or  interests  of  any  persons  other  than  the  parties  to 
the  suit  and  those  acquiring  from  or  under  them.  It 
would  seem  that  in  an  action  between  A  and  B,  nothing 
could  be  brought  into  the  custody  of  tlie  law  which 
did  not  belong  to  A  or  B.  It  is  true  that  an  officer 
seizing  property  under  process  acts  as  the  agent  of  the 
court  out  of  which  the  process  issued,  and  his  possession 
becomes  the  possession  of  the  court.  But  he  is  gener- 
ally regarded  as  the  agent  of  the  court  only  while  he 

490Covell  V.  Heyman,  111  U.  S.  184;  note  to  Plume  &  Atwood  M. 
Co.  V.  Cladwell,  29  Am.   St.   Rep.  .".11. 
*9i  Gumbel  v.  Pitkin,  124  U.  S.  131. 


605     '     I'EUSONAL  rilOPERTY  SUBJECT  TO  EXECUTION.        §  135 

does  what  the  i^rocess  lawfully  comniands  him  to  do; 
and  his  seizure  of  something  which  he  had  no  right  to 
seize  ought  not  to  be  regarded  as  the  act  of  the  court, 
for  the  court  ought  not  to  be  presumed  to  intend  that 
its  agent  should  act  wrongfully.  The  courts  of  each 
state  or  nation  are,  however,  unwilling  that  the  courts 
of  any  other  sovereignty  should  exercise  any  authority 
which  might  impair  the  jurisdiction  of  the  former  by 
taking  property  out  of  the  i)OSsession  of  their  officers j 
and  they  will  not  permit  the  courts  of  another  jurisdic- 
tion to  determine  whether  such  possession  was  taken 
rightfully  or  not.  If  an  officer,  acting  under  a  writ  of 
execution  or  attachment,  issued  out  of  a  court  of  the 
United  States,  seizes  the  property  of  a  stranger  to  the 
writ,  he  is  confessedly  guilty  of  an  act  for  which  his 
writ  affords  no  justification,  and  he  may  be  sued  in  a 
state  court  for  the  tort  committed  by  him.'*^-  But  the 
property  thus  wrongfully  seized  is,  by  the  national 
courts,  nevertheless,  treated  as  in  their  custody,  and 
they  will  not  permit  it  to  be  taken  by  an  officer  of  a 
state  court  under  any  writ  whatsoever.  If  the  true 
owner  wishes  to  secure  its  return  to  him  he  must  re- 
sort to  the  court  in  w'hose  custody  it  is,  and  vindicate 
his  claim  by  some  ancillary  proceeding  there  taken. ^^'^ 
The  taking  of  property  by  an  officer  acting  under  a 
writ  of  replevin,  places  it  within  the  custody  of  the 
law,  and,  therefore,  precludes  it  from  being  levied  upon 
under  an  execution  to  the  same  extent  as  if  it  had 
been  levied  upon  for  the  purpose  of  subjecting  it  to 

<92  Buck  V.  Con)ath,  7  Miun.  310,  82  Am.  Dec.  91.  affirmed  3  Wall. 
343. 

<83  Beckett  v.  Sheriff,  21  Fed.  Rep.  32;  Covell  v.  ne.vmau.  Ill 
U.  S.  170;  Freeman  v.  HoAve.  24  How.  4riO:  Krippendorf  v.  Hyde, 
110  U.  S.  270;  Lewis  v.  Buck.  7  Miun.  104,  S2  Am.  Dec.  73;  United 
States  V.  Dautzler,  3  Woods,  719. 


§  135a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     ..     606 

the  satisfaction  of  a  judgment.  No  levy  can  be  per- 
mitted wliicli,  if  elfective,  might  defeat  the  object  of 
the  action  of  replevin.^^* 

Property  may  also  be  placed  in  the  custody  of  the 
law  in  some  cases,  though  possession  of  it  is  not  de- 
livered to,  nor  taken  by,  any  sheriff  or  other  officer 
of  the  court,  provided  it  is  subject  to  some  proceed- 
ing authorized  by  law,  the  object  of  which  is  to  make 
it  answerable  for  some  judgment  already  entered,  or 
which  is  sought  to  be  procured.  Thus,  a  statute  may, 
instead  of  requiring  property  to  be  seized  and  taken 
into  the  possession  of  the  officer,  provide  for  some  pro- 
ceeding by  way  of  garnishment,  effected  by  service  of 
notice  on  the  person  in  whose  possession  the  property 
is,  and  making  it  his  duty  to  deliver  the  propei-ty  in 
satisfaction  of  a  judgment  existing  or  to  be  recovered. 
By  the  service  of  such  notice  the  property  is  put  in 
custody  of  the  law.*^^ 

§  1 35  a.  Property  the  Subject  of  Creditor's  Suits.— Or- 
dinarily  the  mere  pendency  of  a  suit,  touching  the 
ow^nership  of  property,  does  not  place  it  in  the  custody 
of  the  law,  nor  inhibit  the  levy  of  execution  thereon.^^** 
A  creditor's  bill  to  subject  personal  property  to  the  pay- 
ment of  debts  does  not,  prior  to  the  appointment  of  a 
receiver,  put  it  in  the  custody  of  the  law.  The  rule  is 
well  settled  in  New  York  that  the  plaintiff  in  a  cred- 
itors' action  acquires,  by  the  commencement  of  the 
suit,  a  lien  upon  the  choses  in  action  and  equitable  as- 

494Tremalne  v.  Mortimer,  7  N.  Y.  Supp.  681;  First  N.  B.  v.  Dunn, 
97  N.  Y.  149,  49  Am.  Rep.  517;  Williamson  v,  Nealy,  119  N.  O. 
339. 

495  Northfipld  N.  Co.  v.  Sharpleigh,  24  Nob.  6.^j,  8  Am.  St.  Rep. 
224;  Grand  Island  B.  Co.  v.  Costello.  4.'  Neb.  119. 

48«  Joseph  V.  Boldridge,  43  Mo.  App.  333. 


€07  PERSONAL  PKOPERTY  SUBJECT  TO  EXECUTION.      §  i33b 

sets  of  the  debtor,  which  entitles  him,  in  the  success- 
ful event  of  the  action,  to  priority  of  payment  thereout 
in  preference  to  other   creditors,    irrespective   of   the 
priority  of  the  respective  judgments,"*"'  and  tiiis  lien 
is   not   displaced    or   defeated    by   the    death    of   the 
debtor  before   judgment.*"'^     But    in   respect  to  chat- 
tels, subject  to  be  taken  on  execution,  the  rule  seems 
to  be  that,  unless  the  action  is  brought  in  aid   »»r  an 
execution,    the    mere    commencement    of    the    action 
creates  no  lien  as  against  other  creditors,  and,  if  any 
lien  whatever  exists,  it  is  so  incomplete  and  imperfect 
that  it  is  subject  to  be  overreached  by  a  subsequent 
levy  in  favor  of  other  creditors,  made  before  the  ap- 
pointment of  a  receiver.*^"    When  a  receiver  is  actually 
appointed  without  an  intervening    levy    having    been 
made,  the  appointment  operates  as  an  equitable  levy 
and  a  sequestration  of  the  chattels  for  the  benefit  of 
the  plaintiff.     It  is  the  appointment    of   the   receiver 
which  makes  the  lien  eiTective  and  gives  the  plaintiff 
priority.'*"" 

§  135  b.  Termination  of  the  Custody  of  the  Law.— 
Property  once  in  the  custody  of  the  law  remains  so  as 
long  as  it  is  held  by  some  officer  or  person  subject  to 
the  duty  of  delivering  it  in  obedience  to,  or  in  satis- 
faction of,  a  judgment  existing  or  contemplated  in  the 
action  or  proceeding  in  which  it  has  been  placed    in 

<07  Edmoston  v.  Lyde.  1  Paige,  G37,  19  Am.  Dec.  454;  Corning  v. 
White,  2  Paige,  5G7,  22  Am.  Dec.  5G9. 

<88  Brown  v.  Nicliol.s,  42  N.  Y.  20. 

*oo  Lansing  v.  Easton,  T  Paige,  3G4;  Beclier  v.  Torrance.  ."31  N.  Y. 
«31;  Van  Alstyne  v.  Coolv,  25  N.  Y.  4S9;  Davenport  v.  Kelly,  42 
N.  Y.  193;  Storms  v.  Waddell.  2  Sand.  Ch.  494. 

BOO  First  N.  B.  v.  Shuler,  153  N.  Y.  1G3,  60  Am.  St.  Rep.  GOl;  King 
V.  Goodwin.  1.30  111.  102,  17  Am.  St.  Rep.  277;  Ex  parte  Piedmont 
M.  Co.,  34  S.  C.  554. 


§  135b     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  60S. 

legal  custody.    "So  long  as  the  property  is  in  the  cus- 
tody of  the  officer  for  the  purpose  of  enabling  him  to  de- 
liver it  according  to  the  exigency  of  the  writ,  it  can 
not  be  taken  from  him  by  any  one,  even  though  acting 
under  a  valid  writ,  issuing  out  of  a  court  of  competent 
jurisdiction.     But  w^hen  the  court's  officer  parts  with 
the  possession  of  the  property,  and,  according  to  the- 
directions  of  his  writ,  makes  delivery  to  the  plaintiff 
in  replevin,  the  property  is  no  longer  under  the  care 
of  the  court,  and  any  third  person  may  claim  it,  to 
make  service  of  his  writ  upon  it."  °"^    It  was,  there- 
fore, held  in  the  case  last  cited  that,  after  a  marshal, 
who  had  taken  goods  under  a  writ  of  replevin,  had  de- 
livered them  to  the  plaintiff,  that  they  had  passed  out 
of  the  custody  of  the  court  and  become  subject  to  a 
writ  of  attachment,  issued  out  of  another  court  against 
the  plaintiff.     In  another  case  in  a  national  court  it 
was  held  that  the  direction  of  the  court  to  its  marshal 
to  deliver   property  to   a  person  terminated   the   cus- 
tody of  the  law,  and  subjected  it  to  attachment,  though 
still  in  the  hands  of  such  marshal.^**^    Other  decisions 
indicate  that  a  mere  direction  or  judgment  that  an  of- 
ficer of  the  court  deliver  property  does  not,  ipso  facto, 
terminate  the  custody  of  the  law,  if  the  goods  yet  re- 
main in  the  possession  of  such  officer.®**^ 

The  fact  that  property  no  longer  remains  in  the  cus- 
tody of  some  officer  of  the  court  is  by  no  means  con- 
clusive that  it  is  free  from  the  custody  of  the  law,  so 
as  to  become  subject  to  seizAire  under  execution.  It 
may  have  been  delivered  to  a  party  to  the  action  or 
to  some  other  person,  and  may  yet  remain  subject  t'l- 

Boi  Animarinm  Co.  v.  Bright.  82  Fed.  Rep.  197. 

602  Daniels  v.  Lazarus,  (m  Fed.  Rep.  71S. 

603  Pace  V.  Smith,  57  Tex.  555;  Curtis  v.  Ford,  78  Tex.  2G2. 


COD  I'ERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.      §  135b 

the  final  jiK]y,ment  to  bo  entered  in  the  iiclioii.  If  so, 
the  party  or  person  to  whom  it  was  thus  delivered  has 
become  charged  with  the  duty  of  jjreserving  and  safely 
keei^ing  it,  and  of  prcnlucing  it  in  response  to  the  judg- 
ment or  orders  of  the  court,  and  it,  therefore,  is  still 
in  the  custody  of  the  law.  If  goods  are  attached,  and 
the  defendant  obtains  possession  of  them  fruia  the  of- 
ficer on  executing  a  bond  conditioned  that  he  will  sur- 
render them  in  satisfaction  of  any  judgment  which  may 
be  entered  in  the  action,  they  cannot  be  seized  under 
another  writ  issued  against  him,  until  the  duty  to  keep 
them  as  stipulated  in  the  bond  has  ended/"'*^  The 
same  result  follows  when  an  officer  has  levied  upon 
property  and  it  has  been  taken  from  his  possession  by 
proceedings  in  replevin,  and  the  plaintiff  in  the  action 
remains  under  obligation  to  restore  the  property  to  the 
officer  or  to  the  defendant,  if  the  action  of  replevin 
terminates  in  the  latter's  favor.  During  the  pendency 
of  the  action  of  replevin,  the  same  goods  are  not  sub- 
ject to  levy  under  another  writ  against  the  defendant 
in  execution.'"***^  In  Texas,  it  was  held  that  when  a 
claimant  of  attached  property  filed  a  bond,  by  virtue 
of  which  he  became  entitled  to,  and  received  possession 
of,  the  property  attached,  such  bond  took  the  place 
of  the  property  and  freed  it  from  the  custody  of  the 
law,  and  it,  therefore,  became  subject  to  other  writs.^^ 
Subsequently  a  statute  was  enacted,  declaring  prop- 
erty to  be  in  custody  of  the  law  after  the  giving  of  a 
bond  and  the  surrender  of  the  property  to  the  claim- 

B04  Stevenson  v.  Palmer,  14  Colo.  5Go,  20  Am.  St.  Rep.  295;  Edison 
V.  Woolery,  10  Wash.  22o. 

605  Beagle  v.  Smith,  50  Neb.  446;  Coos  Bay  etc.  Co.  v.  Wieder,  20 

Or.  453. 

606  Frieberg  v.  Elliott,  G4  Tex.^  367. 

Vol.  I.-39 


§  136       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  610 

ant,  and  that  it  should  not  be  taken  out  of  his  pos- 
session by  any  other  writs,  but  that  such  writs  nii<;ht 
be  levied  by  giving  notice  to  him,  in  which  case  the 
bond  should  enure  to  the  several  plaintiffs  in  such  writs 
according  to  their  respective  priorities.""'' 

If  personal  property  is  attached  and  then  taken  from 
the  possession  of  the  attaching  officer  by  a  writ  issued 
in  an  action  of  replevin,  but  the  actioii  is  collusive, 
there  being  no  bona  fide  controversy  between  the  par- 
ties, they  cannot  thereby  place  the  property  in  the  cus- 
tody of  the  law.  It  remains  subject  to  execution  or  at- 
tachment, regardless  of  their  collusive  proceedings.^"^ 

§  136.  Property  Conveyed  in  Fraud  of  Creditors— Gen- 
eral Rule. — The  struggle  between  fraud  and  justice 
seems  to  be  as  old  as  time,  and  bids  fair  to  prove  as 
endless  as  eternity.  Fraud  has  always  sought  to  in- 
terpose itself  as  a  shield  to  save  the  debtor  from  the 
execution  of  the  law.  The  law  has  retaliated  by  put- 
ting its  mark  of  condemnation  upon  fraud  in  every  dis- 
tinguishable form;  and  fraud,  to  escape  the  just  judg- 
ment of  the  law,  has  concealed  its  identity  by  every 
conceivable  disguise,  and  pursued,  by  artifice  and  am- 
buscade, the  struggle  in  which  open  contest  was  sure 
defeat.  Whoever  goes  out  with  an  execution  to  seek 
the  fruits  of  his  judgment  is  too  apt  to  find  that  fraud 
has  forestalled  him.  It  then  becomes  his  business  to 
pursue  those  fruits,  wherever  fraud  has  taken  them; 
to  wrest  them  from  the  possession  of  his  adversary, 
wherever  they  may  be  found;  and  to  prepare  himself 
to  show  that  the  refuge  whence  he  has  wrested  tliem 

B07  United  States  C.  Co.  v.  Bay  City  B.  W' orlvs.  12  Tex.  Civ.  App. 

52. 
608  Kingman  F.  N.  B.  v.  Gorson,  50  Kan.  582. 


611  PERSONAL  PROPERTY  SUbJLCT  TU  EXECUTION.       §  136 

is  Still  the  refuge  of  fraud.  In  uianj  instances  the  aid 
of  equity  is  invoked.  But  generally  this  is  unneces- 
sary; for  a  transfer  made  to  hinder,  delay,  or  defraud 
creditors,  while  as  between  the  parties  it  conveys  the 
title,  has  as  against  a  creditor  proceeding  under  exe- 
cution no  such  effect.  As  against  the  fraudulent  trans- 
feree, the  creditor  may  seize  the  property,  whether  real 
or  personal,  as  that  of  the  fraudulent  vendor,  and  may 
proceed  to  sell  it  under  execution.  The  title  transferred 
by  such  sale  is  not  a  mere  equity — not  the  right  to 
control  the  legal  title,  and  to  have  the  fraudulent  trans- 
fer vacated  by  some  appropriate  proceeding;  it  is  the 
legal  title  itself,  against  which  the  fraudulent  trans- 
fer is  no  transfer  at  all.^"^  A  creditor  having  a  judg- 
ment may,  if  he  thinks  it  advisable,  ask  the  aid  of 
equity,  but  he  cannot  be  compelled  to  do  so.  Ilis  judg- 
ment is  an  effective  lien  against  real  estate  fraudu- 
lently conveyed,  and  he  may  rely  upon  it  as  such  in 

509  Daisy  R.  M.  v.  Ward.  6  N.  D.  317;  Berjron  v.  Snedeker.  8  Abb. 
N.  C.  58;  O'Brien  v.  Browning,  49  How.  Pr.  113;  Warden  v.  Brown- 
ing, 12  Hun,  499;  High  v.  Nelms,  14  Ala.  350,  48  Am.  Dec.  103; 
Johnston  v.  Harvey,  2  Penr.  &  W.  82,  21  Am.  Dec.  42G;  Stewart  v. 
McMiun,  5  Watts  &  S.  100,  39  Am.  Dec.  115;  Scully  v.  Keans.  14 
La.  Ann.  436;  Gleises  v.  :M(IIatton,  14  La.  Ann.  5(X);  Hall  v.  Sands, 
52  Me.  355;  Gormerly  v.  Chapman,  51  Ga.  421;  Pratt  v.  Wheeler, 
6  Gray,  520;  Austin  v.  Bell.  20  Johns.  442,  11  Am.  Dec.  297;  Lowry 
V.  Orr.  1  Gilm.  70;  Gooch's  Case,  5  Coke,  GO;  Jacoby's  Appeal,  67 
Pa.  St.  434;  Hoffman's  Appeal,  44  Pa.  St.  95;  Eastman  v.  Sehettler, 
13  Wis.  324;  Pepper  v.  Carter.  11  Mo.  540;  Barr  v.  FTatch.  3  Ohio, 
527;  Russell  v.  Dyer.  33  N.  H.  186;  Duvall  v.  Waters.  1  Bland.  509, 
18  Am.  Dec.  350;  INIiddlcton  v.  Sinclair.  5  Cranch  C.  C.  409;  Lau- 
rence V.  Lippencott.  1  Halst.  473;  Croft  v.  Arthur.  3  Desaus.  Eq. 
223;  Shears  v.  Rogers.  3  Barn.  &  Adol.  303;  Allen  v.  Berry,  .50  Mo. 
90;  Ryland  v.  Callison,  54  Mo.  513;  Staples  v.  Bradley,  23  Conn. 
167,  60  Am.  Dec.  630;  FoMier  v.  Trebein.  16  Ohio  St.  493,  91  Am. 
Dec.  95;  Manhattan  Co.  v.  Evertson.  6  Paige,  457;  Foley  v.  Bitter. 
34  Md.  646;  Shur  v.  StaUer,  1  West.  L.  Mo.  317.  But  Yocum  v. 
Bullit.  17  Am.  Dec.  184.  Payne  v.  Graham,  23  La.  Ann.  771.  and 
Collins  V.  Shaffer,  20  La.  Ann.  41.  seem  to  oppose  the  general  rule. 


§  13G       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  612 

all  contests  not  involving  the  rights  of  bona  fide  pur- 
chasers or  encumbrancers  who  have  acted  upon  the 
apparent  title  and  without  any  actual  or  implied  no- 
tice of  the  fraud.°^"  If  other  creditors  proceed  in 
equity  to  have  the  conveyance  adjudged  fraudulent, 
and  a  receiver  of  the  property  appointed  and  a  sale 
made  by  him,  such  sale  is  subordinate  to  any  pre-exist- 
ing judgment  liens,  and  the  holders  of  such  liens  can- 
not be  compelled  to  relinquish  them  nor  to  accept  any 
distribution  of  the  proceeds  which  ignores  their  priori- 
ties.°^^  If  the  vendor  of  a  sale,  fraudulent  as  against 
creditors,  were  to  die,  the  vendee  might  at  the  com- 
mon law  be  charged  as  his  executor  de  son  tort,  "and 
this,  too,  although  there  was  a  rightful  executor  or 
administrator";  °^^  and,  if  the  vendee  were  to  die  also, 
his  executor  or  administrator  could  also  be  proceeded 
against  as  executor  de  son  tort.^*^  And  what  is  true 
of  fraudulent  transfers  is  equally  true  of  fraudulent  re- 
leases,^"  mortgages,  liens,  judgments,  executions,  and 
all  similar  devices  for  hindering,  delaying,  or  defraud- 
ing creditors.  Property  held  under  and  by  virtue  of  a 
fraudulent  lien,  execution,  or  transfer  is  subject  to  exe- 
cution precisely  as  if  such  transfer  had  not  been  made 
and  such  lien  had  not  been  given.'*^    That  such  lien 

BIO  See  §§  140,  141. 

Bii  Chautanqiie  Co.  Bank  y.  Risley  19  N.  T.  .3G0,  7.5  Am.  Dec.  347; 
Sanders  v.  Wagonseller,  19  Pa.  St.  252. 

512  Babeock  v.  Booth,  2  Hill,  181.  38  Am.  Dec.  .^)78;  Osborne  v. 
Moss,  7  Johns.  161,  5  Am.  Dec.  252;  Ashby  v.  Child.  Style,  384; 
Tucker  v.  Williams.  Dud.  329.  31  Am.  Dec.  561. 

B13  McMorine  v.  Storey,  4  Dev.  &  B.  189.  ,34  Am.  Dec.  374. 

B14  Bement  v.  Ohio  B.  &  B.  Co..  99  Ky.  109.  .'9  Am.  St.  Rep.  44,5. 

B15  Walton  V.  First  N.  B..  13  Colo.  265,  16  Am.  St.  Rop.  200;  Wil- 
kinson v.  Goohm,  71  Mo.  App.  394;  Ttobinson  v.  Holt.  39  N.  H.  557, 
75  Am.  Dec.  233;  Fischel  v.  Keer.  45  N.  .T.  L.  .507;  Switzer  v.  Skiles, 
3  Gilm.  529,  44  Am.  Dec.  723.     As  to  mortgages,  see  Angier  v.  Ash,^ 


<J1.J  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  13G 

is  pursued  to  judgment,  and  the  judgnienc  iis  in  turn 
followed  by  execution  and  sale,  is  immaterial  as 
against  a  creditor  who  is  not  a  party  to  such  judgment, 
for  the  lien,  judgment,  and  sale,  taken  in  the  aggregate, 
amount  only  to  a  fraudulent  conveyance.  Hence,  if 
a  fraudulent  mortgage  be  given  and  foreclosed,  a  cred- 
itor, not  a  party  to  the  foreclosure,  may  proceed  to  sell 
under  his  execution  with  like  effect  as  if  no  mortgage 
had  been  executed,  and  no  decree  of  foreclosure  en- 
tered.'*^" No  distinction  can  be  made  between  a  trans- 
fer or  lien,  partly  honest  and  partly  in  fraud  of  cred- 

26  N.  H.  99;  Brown  v.  Snell,  46  Me.  490.  In  the  case  of  Booth  v. 
Buuee,  33  N.  Y.  139,  88  Am.  Dec.  372,  membei-s  of  an  embarrassetl 
corporation  formed  a  new  corporation,  to  which  they  transferred 
all  the  assets  of  the  old  one.  This  transaction  was  declai'ed  void 
as  against  the  creditors  of  the  old  corporation,  and  they  were  al- 
lowed to  levy  upon  the  property  as  though  no  transfer  had  been 
made,  the  court  quoting,  with  approval,  the  following  language  from 
another  decision:  "Deeds,  obligations,  contracts,  judgments,  and 
■even  corporate  bodies,  may  be  instruments  through  which  parties 
may  obtain  the  most  unrighteous  advantages.  All  such  devices 
and  instruments  have  been  resorted  to  to  cover  up  fraud;  but.  when- 
ever the  law  is  invoked,  all  such  instruments  are  declared  nullities; 
they  are  a  perfect  dead  letter;  the  law  looks  ui>on  them  as  if  they 
had  never  been  executed.  They  can  never  be  jusliticd  fior  sanc- 
tified by  any  new  shape  or  cover,  by  forms  or  recitals,  by  cove- 
nants or  sanctions,  which  the  ingenuity,  or  skill,  or  genius  of  the 
rogue  may  devise."  Substantially  the  same  conclusion  was  reached 
in  Kellogg  v.  Douglas  Co.  Bank.  08  Kan.  43.  G2  Am.  St.  Rep.  596. 
where  it  appeared  that  an  embarrassed  debtor  organized  a  corpo- 
ration and  transferred  to  it  his  stock  of  merchandise  and  the 
bouse  in  which  he  conducted  his  business,  in  consideration  of  which 
the  entire  stock  of  the  corporation  was  issued  to  him  and  to  mem- 
bers of  his  family.  The  court  said:  "Clearly  a  fraud  may  be  com- 
mitted in  the  transfer  of  a  debtor's  property  to  such  a  corporation, 
as  well  as  by  a  transfer  to  another  individual  for  the  purpose  of 
placing  it  beyond  the  reach  of  creditors.  In  such  case  the  court 
jvas  clearly  warranted  in  closely  scrutinizing  the  transaction  and 
declaring  its  real  purpose,  notwithstandinsr  the  elaborate  fabrica- 
tion of  charters.  l>y-laws.  and  paper  transfers." 

516  Beeler  v.  Bullitt,  3  A.  K.  Marsh.  280.  13  Am.  Dec.  101, 


§  136   PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     614 

itors.  If  any  portion  of  its  purpose  is  to  hinder,  de- 
lay, or  defraud  creditors,  tlie  law  denounces  it  as  void, 
not  with  respect  to  such  purpose  merely,  but  wholly 
and  unconditionally.  "The  unlawful  design  of  the  par- 
ties cannot  be  confined  to  one  particular  parcel  of  prop- 
erty. Entire  honesty  and  good  faith  is  necessary  to- 
render  it  valid;  and  whenever  it  indisputably  appears- 
that  one  object  was  to  defraud  creditors  to  any  extent, 
the  entire  instrument  is,  in  judgment  of  law,  void.-'  ®*'' 

617  Russell  V.  Winne,  37  N.  Y.  591;  4  Abb.  Pr.,  N.  S.,  384,  97  Am. 
Dec.  755;  Collins  v.  Blantern,  2  Wils.  351;  Maleverer  v.  Redshaw,  1 
Mod.  35;  Norton  v.  Simmes.  Hob.  12  c;  Grover  v.  Wakenian,  11 
Wend.  194,  25  Am.  Dec.  024;  Mackie  v.  Cairns,  Hopk.  Cb.  373;  5 
Cow.  547,  15  Am.  Dec.  477;  Hyslop  v.  Clarke,  14  .Tobns.  464;  Mc- 
Kenty  v.  Gladwin,  10  Cal.  227;  Termor's  Case,  3  Coke,  78;  Weedoa 
V.  Hawes.  10  Conn.  50;  Wimbush  v.  Tailbois,  Plow.  54;  Scales  v. 
Scott,  13  Cal.  77;  Tickner  v.  Wiswall,  9  Ala.  305;  Burke  v.  Murphy^ 
27  Miss.  1G7;  Mead  v.  Combs,  19  N.  J.  Eq.  112:  Hall  v.  Heydon,  41 
Ala.  242;  Coolidge  v.  Melvin,  42  N.  H.  510;  Jobnson  v.  :Murchison,  1 
Winst.  292;  Hawes  v.  Mooney,  39  Conn.  37;  Barrett  v.  Nealon.  11^ 
Pa.  St.  171,  4  Am.  St.  Rep.  628;  Beidler  v.  Crane,  135  111.  92,  25  Am. 
St  Rep.  349.  In  this  case  the  court  in  its  opinion  said:  "It  is  urged 
that  there  was  error  in  the  decree  of  the  circuit  court,  in  that  it 
did  not  prefer  the  claim  of  the  appellant  to  the  amount  of  the 
moneys  by  him  actually  advanced  and  paid  for,  and  on  account  of 
the  several  patents  in  the  record  named,  over  and  as  against  the 
claims  and  demands  of  the  several  appellees.  It  is  without  doubt 
the  rule  in  equity  that,  where  a  conveyance  or  transfer  of  property 
is  set  aside  solely  upon  the  ground  that  it  is  constructively  fraudu- 
lent as  to  creditors,  it  will  yet  be  upheld  to  the  extent  of  the  actual 
consideration,  and  be  vacated  only  as  to  the  excess.  Phelps  v.  Curts, 
SO  111.  109,  Lobstein  v.  Lehn,  120  111.  549.  The  difficulty,  however,, 
with  this  claim  of  appellant  is,  that  both  the  circuit  and  the  ap- 
pellate courts  have  foxmd  that  the  deeds  of  assignment  by  which 
the  letters  patent  were  transferred  were  fraudulent  in  fact,  as  well 
as  from  mere  implication  of  law,  and  that  we,  after  a  very  careful 
examination  of  all  the  evidence  found  in  the  record,  concur  is  the 
view.  A  transfer  of  property  must  not  only  be  upon  a  good  con- 
sideration, but  it  must  also  be  bona  fide.  Even  though  the  grantee- 
or  assignee  pays  a  valuable,  adequate,  and  full  consideration,  yet,  if 
the  grantor  or  assignor  sells  for  the  i)urpose  of  defeating  the  claims- 
of  his  creditors,  and  such  grantee  or  assignee   knowingly  assist* 


C1.3  1'1':RS0NAL  property  SUIUECT  to  EXELL'ilON.        §  l-M 

An  impression  to  some  extent  prevails  when  a  trans- 
fer lias  been  maJe  for  the  purpose  of  defrauding  the 
creditors  of  the  fraudulent  vendor,  that  the  legal  title 
passes  to  the  vendee  as  against  such  creditors,  and 
that  in  any  proceeding  to  reach  the  property  thus 
transferred  and  subject  it  to  the  payment  of  their 
debts,  they  must,  by  their  pleadings,  allege  the  facts 
upon  which  they  claim  to  be  entitled  to  relief,  or,  in 
other  words,  that  they  must,  in  some  mode,  set  aside 
the  fraudulent  transfer  or  enjoin  the  transferee  from 
claiming  under  it.  This,  as  we  have  already  indicated, 
is  erroneous.  As  against  the  creditors  of  the  fraudu- 
lent transferrer,  the  legal  title  remains  in  him,  and  they 
may,  under  execution,  levy  upon  the  property  thus 
transferred  to  the  same  extent  as  if  it  still  belonged 
to  hini.^***  The  judgment  creditor  may,  it  is  true,  pro- 
ceed in  equity  and  there  obtain  relief  by  annulling  the 

In  offeotnating  snch  fraudulent  intent,  or  even  has  notice  thereof, 
he  will  be  I'ejrarded  as  a  participator  in  the  fraud,  for  the  law 
never  allows  one  man  to  assist  in  cheating  anotlicr.  Bump  on 
Fraiidulont  Conveyances.  2d  ed..  1!)7  et  seq.  A  deed  fraudulent  in 
fact  is  absolutelj'^  void  as  against  creditors,  and  is  not  permitted 
to  stand  for  any  purpose  of  reimliursement  or  indemnity.  Lobstt-in 
V.  Lehn.  120  Til.  o49;  Phelps  v.  Curts.  80  111.  100." 

In  equity,  however,  there  are  cases  in  which  this  rule  has  not 
been  rigidly  applied,  as  where  the  fraud  was  constructive  ratlier 
than  actual,  and  where  there  was  doubt  whether  the  grantee  par- 
ticipated in  the  fraud.  Thus,  in  a  case  in  New  Jersey  where  the 
court  had  a  well  grounded  suspicion  as  to  the  adequacy  of  the  con- 
pideration  and  the  fairness  of  the  transaction,  but  was  not  free  from 
doubt  "whether  the  grantee  had  knowledge  of,  or  participated  in  th'> 
fraudulent  intent  of  the  grantor."  it  permitted  the  deed  to  stand  as 
security  for  the  consideration  actually  given.  Withcrow  v.  WarniT, 
56  N.  J.  Eq.  795.  07  Am.  St.  Rep.  HOI. 

BIS  Sonter  v.  Williams.  61  Ark.  ISO.  M  Am.  St.  Rep.  200;  Wondarrl 
V.  Mastin.  106  ^Mo.  ."'.24;  Loos  v.  Wilkin.son.  110  N.  Y.  19.";  Renninger 
V.  Spatz.  128  111.  ."24.  1.")  Am.  St.  Rep.  002:  Adams  v.  Paletz  (Tenn. 
Ch.  App.).  43  S.  W.  133;  Hamburg  v.  Taletz  (Tenn.  Ch.  App.\  42 
S.  W\  807. 


§  136       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  (J16 

iraudulent  transfer  or  eujoiuiug  the  fraudulent  trans- 
feree from  claiming  under  it,  but  he  is  not  obliged  to 
resort  to  this  proceeding.^^*  ^  If  he  proceeds  to  sell  the 
proi)erty  levied  on,  the  purchaser  at  such  sale  obtains 
a  perfect  legal  as  well  as  equitable  title.^*'^  If  the 
officer  making  the  levy  is  sued  by  the  fraudulent  ven- 
dee, seeking  to  recover  possession  of  the  property  or 
damages  for  its  conversion,  such  oflicer,  under  a  de- 
nial of  the  title  of  the  plaintiff  and  without  any  addi- 
tional plea,  may  offer  evidence  tending  to  show  fraud 
in  the  transfer,  and  if  he  establishes  such  fraud  to  the 
satisfaction  of  the  court  or  jury,  he  must  prevail,  for 
the  proof  of  the  fraud  establishes,  for  the  purposes  of 
that  controversy,  that  the  property  in  question  re- 
mained at  the  time  of  the  levy  the  property  of  the 
fraudulent  transferrer.^^^ 

From  the  proposition  that  a  transfer  of  property, 
made  with  intent  to  defraud  the  creditors  of  the  trans- 
ferrer, is  void  as  against  them,  it  follows  that  they  may 
pursue  such  property  in  the  hands  of  a  fraudulent 
transferee  or  of  any  person  receiving  possoi-^sion  thereof 
from  him  without  consideration,  or  without  notice  of 
the  fraud,  and  that  any  disposition  of  such  property 
made  by  either  of  such  persons  which  will  prevent 
such  creditors  from  subjecting  it  to  execution,  is  an 
injury  to  them  for  which  they  are  entitled  to  redress, 
and,  upon  a  sale  of  such  property,  the  moneys  received 
may  be  regarded  as  held  in  trust  fOr  such  creditors, 

618a  Logan  V.  Logan.  22  Fla.  501,  1  Am.  St.  Rep.  212. 

C19  Judson  V.  Lyford,  84  Cal.  505;  Thompson  v.  Baker,  141  U.  S. 
648. 

620  Bull  V.  Ford,  66  Cal.  176;  Humphreys  v.  Ilarkey,  55  Cal.  284; 
Mason  v.  Vestal,  88  Cal.  396,  22  Am.  St.  Rep.  310,  modifying  and 
explaining  Albertoli  v.  Branham,  80  Cal.  633,  13  Am.  St.  Rep.  200, 
and  Seekforth  v.  Lord,  87  Cal.  3t)9. 


4)17  TERSONAL  I'KOl'EKTY  iJUDJ  HCT  TO  EXECUTION.        g  laC 

aud  IhcY  may,  by  a  proper  acLi(jii,  compel  the  paymeut 
tlierc'or  uj  them.^-'    A  debior  in  lailing  circumslances 
may  seek  to  avoid  bis  creditors  by  purchasing  prop<*rty, 
and  having  the  title  tali.en  in  the  name  of  some  friend 
or  relative.     This,  being  a  device  to  hinder,  delay,  or 
ilefraud  creditors,  may  be  thwarted;  or,  more  properly 
speaking,  the  property  thus  conveyed  may  be  made  to 
contribute  to  the  payment  of  the    debts    of    its    real 
owner.    This  object  cannot,  however,  be  accomplislied 
at  law.     The  aid  of  equity  must  be  sought,     ^^'here  a 
debtor  has  fraudulently  conveyed  his  properly,  it  may 
be  taken  on  execution  against  him,  because,  in  favoi- 
of  his  creditors,  he  is  still  considered  as  the  owner  of 
the  legal  as  well  as  of  the  equitable  title.     But  wh<'n 
he  has  fraudulently  bought  property,  and  had  the  title 
taken  in  the  name  of  another,  the  circumstances  are 
different,  though  the  object  is  the' same.    If  the  trans- 
fer were  treated  as  void,  the  title  would  remain  in  the 
person  of  whom  the  purchase  was  made;  and  this  would 
be  of  no  advantage  to  the  creditors.    The  transfer  must, 
therefore,  be  treated  as  valid,  and  as  transmitting  the 
legal  title  to  the  person  named  in  the  deed.    This  legal 
title  cannot  be  reached  by  the  levy  of   an    execution 
against  the  debtor,  because  he  has  never  owned  it.    The 
creditors  must,  therefore,  resort  to  equity,''"-  except 

521  Ilulley  V.  Chedic,  22  Nev.  127.  5S  Am.  St.  Reji.  729;  Murth.i 
T.  Curley,  90  N.  Y.  372;  Ferguson  v.  Ilinman,  55  Wis.  181;  La 
Crosse  N.  B.  v.  Wilson,  74  "Wis.  91. 

622  Bolford  V.  Crane.  16  N.  .T.  Eq.  205,  84  Am.  Doc.  1.55:  Williams 
V.  Council,  4  Jones.  20C;  Howe  v.  Bishop.  3  Met.  28;  Dockray  v. 
Mason.  48  Me.  178;  Low  v.  Marco.  53  Me.  45;  Hamilton  v.  Cone, 
99  Mass.  478;  W^ebstor  v.  Folsoni.  58  Me.  230;  Parris  v.  Thompson. 
1  .Tones.  57;  Jimmerson  v.  Duncan.  3  Jones.  537:  Trask  v.  Green. 
9  Mich.  358;  Smith  v.  Ilinson.  4  Heisk.  2.50;  Carfielil  v.  Hatmakcr. 
15  X.  Y.  47G,  reaffirming  Brewster  v.  Power.  10  Paige.  5(>2.  and 
overruling  Wait  v.  Day,  4  Denio,  439;  Worth  v.  York,  13  Ired.  200; 


§  137       PEllSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  CIS 

in  a  few  states,  where  statutes  have  been  enacted  to 
enable  them  to  reach  it  at  law.^^^ 

§  137.  What  Creditors  may  Levy  on  Property  Fraudu- 
lently Conveyed. — To  authorize  a  phiintiff  to  seize  prop- 
erty which  has  been  transferred  with  a  view  of  defraud- 
ing or  delaying  creditors,  it  is  not  necessary  for  him 
to  show  that  the  transfer  was  made  to  avoid  the  pay- 
ment of  his  particular  debt.  If  an  intent  existed  to 
defraud  any  single  creditor,  the  transfer  is  void  as 
against  all  creditors.  A  transfer  made  for  the  purpose 
of  hindering,  delaying,  or  defrauding  existing  creditors 
is  void  as  against  subsequent  creditors.^^*  It  would 
seem  that  the  only  persons  entitled  to  treat  a  convey- 
ance as  fraudulent  and  void  should  be  those  against 
whom  it  might  have  operated  as  a  fraud  at  the  time 
it  was  made,  or  whom  the  grantor  at  that  time  had 
a  design  to  defraud.  It  seems,  however,  to  be  settled 
by  the  decided  preponderance  of  the  authorities  that  a 
conveyance  made  with  the  intent  to  defraud  creditors 

Page  V.  Goodman,  8  Ired.  Eq.  16;  Davis  v.  McKinney,  5  Ala.  719; 
Gray  v.  Faris,  7  Yerg.  155;  Dewey  v.  Long,  25  Vt.  564;  Garret  v. 
Rhame,  9  Ricli.  407,  67  Am.  Dec.  557;  Robertson  v.  Sayre,  134  N.  Y. 
97,  30  Am.  St.  Rep.  627. 

623  Tevis  V.  Doe,  3  Ind.  129;  Pennington  v.  Clifton,  11  Ind.  162; 
Clarli  V.  Chamberlain,  13  Allen,  257;  Dunnica  v.  Coy,  24  Mo.  167,. 
09  Am.  Dec.  420;  Ranldn  v.  Harper,  23  IMo.  579;  Eddy  v.  Baldwin, 
23  Mo.  588;  Thomas  v.  Walker,  6  Humph.  93;  Cecil  Banlc  v.  Snively. 
23  Md.  253;  Kimmel  v.  McRight,  2  Pa.  St.  38;  Howe  v.  Waysman,. 
12  Mo.  169,  49  Am.  Dee.  126;  Stix  v.  Chaytor,  55  Ark.  116. 

624Wyman  v.  Brown,  50  Me.  139;  Clark  v.  French,  23  Me.  221. 
39  Am.  Dec.  618;  Barling  v.  Bishopp,  29  Beav.  417;  Vertner  v.. 
Humphreys,  14  Smedos  &  M.  1.30;  Iley  v.  Niswauger,  1  McCord 
Ch.  518;  Carpenter  v.  Roe.  10  N.  Y.  227;  Madden  v.  Day,  1  Bail. 
337;  Parish  v.  Murphree,  13  How.  92;  Beach  v.  White.  Walk.  Ch. 
495;  Ilurdt  v.  Courtenay,  4  Met.  (Ky.)  1.39;  Lowry  v.  Fisher,  2  Bush,. 
70,  92  Am.  Dec.  7.54;  Ridgeway  v.  Underwood,  4  Wash.  C.  0.  129; 
Doyle  V.  Sleeper,  1  Dana,  531. 


C19  TEIISONAL  PROPERTY  SUBJECT  TO  EXECUi'ION.        §  \-^l 

may  be  disregarded  and  treated  as  void  by  subsequent, 
as  well  as  by  antecedent  creditors.^'"'  This  rule  must, 
we  think,  be  qualified  so  as  to  exclude  from  its  ijrotec- 
tion  all  those  subsequent  creditors  whose  debts  were 
contracted  with  notice  of  the  precedent  transfer,  and 
whom  it,  therefore,  could  by  no  possibility  defraud.'*'** 
A  decided  preponderance  of  the  authorities  still  main- 
tains that  if  a  conveyance  was  made  with  a  fraudu- 
lent intent,  or,  in  other  words,  with  an  intent  to  hinder, 
delay  or  defraud  creditors  of  the  grantor,  existing  or 
contemplated,  it  may  not  only  be  disregarded  and 
treated  as  void  by  those  creditors,  but  also  by  subse- 
quent creditors  of  the  grantor,  whom  he  is  not  shown 
to  have  had  in  contemplation  at  the  time  of  making 
the  fraudulent  transfer.^^''  This  proposition  has  not, 
however,  received  universal  acquiescence.  Thus,  in 
Minnesota,  it  is  said  that  its  courts  have  always  held 
that  a  subsequent  creditor  cannot  avoid  a  conveyance 
by  his  debtor  "not  intended  to,  nor  operating  to,  de- 
fraud him  on  the  ground  that  it  was  executed  with  in- 
tent to  defraud  existing  creditors."  They  admit  that 
an  intention  to  defraud  creditors  may,  in  connection 
with  other  circumstances,  be  evidence  of  an  intent  to 

B2B  Hutchison  V.  Kelly,  1  Rob.  (Va.)  32.3,  39  Am.  Dec.  2.".0; 
Nicholas  v.  Ward,  1  Head,  323,  73  Am.  Dec.  177.  But  in  Maine, 
on  the  other  hand,  a  creditor  cannot  treat  his  debtor's  conveyance 
as  void  unless  every  part  of  the  debt  on  which  the  execution  issued 
accrued  prior  to  the  making  of  such  conveyance.  Usher  v.  Hazol- 
tlne,  5  Greonl.  471,  17  Am.  Dec.  2o3;  Miller  v.  Miller,  23  Me.  22. 
39  Am.  Dec.  597. 

626  Lehmlierg  v.  Biberstein.  51  Tex.  457;  Lewis  v.  Castleiiian. 
27  Tex.  407;  Monroe  v.  Smith,  79  Pa.  St.  459;  Suydor  v.  Christ,  39 
Pa.  St.  499. 

627  Rudy  V.  Austin,  56  Ark.  73.  3o  Am.  St.  Bop.  85;  Ilniormnu  v. 
Buchanan.  45  N.  .T.  E<i.  292.  14  Am.  St.  Kep.  732;  Marsliall  v.  Roll. 
139  Pa.  St.  399,  23  Am.  St.  Kep.  198. 


§  137       rERSONAL  rilOFEKTY  8UBJECT  TO  EXECUTION.  620 

defraud  subsequent  or  prospective  creditors,  and  that, 
wlieu  the  inteut  to  defraud  them  is  established,  the 
transfer  may  be  treated  as  invalid  as  against  them,  but 
it  must  be  treated  a£  valid  as  against  them  in  the  ab- 
sence of  intent  to  defraud  them,  whatever  may  have 
been  the  intent  respecting  the  creditors,  existing  at  the 
time  the  transfer  was  made.""^-^ '  In  Iowa,  its  supreme 
court,  after  an  exhaustive  review  of  the  i^rior  decis- 
ions, recently  said,  "We  think  the  correct  rule  is  1.  A 
conveyance  which  is  merely  Voluntary,  and  when  the 
grantor  has  no  fraudulent  view  or  intent,  cannot  be  im- 
peached by  a  subsequent  creditor;  2.  A  conveyance  ac- 
tually and  intentionally  fraudulent  as  to  existing  cred- 
itors, as  a  general  rule,  cannot  be  impeached  by  sub- 
sequent creditors;  3.  If  a  conveyance  is  actually  fraudu- 
lent as  to  existing  creditors,  and  merely  colorable,  and 
the  property  is  held  in  secret  trust  for  the  grantor, 
who  is  permitted  to  use  it  as  his  own,  it  will  be  set 
aside  at  the  instance  of  subsequent  creditors.  The  sec- 
ond rule  above  laid  down  is  subject  to  some  excep- 
tions, among  which  may  be  mentioned  cases  in  which 
the  conveyance  is  made  by  the  grantor  with  the  express 
intent  and  view  of  defrauding  those  who  may  there- 
after become  his  creditors;  cases  wherein  the  grantor 
makes  the  conveyance  w-ith  the  express  intent  of  be- 
coming thereafter  indebted;  cases  of  voluntary  convey- 
ances, when  the  grantor  pays  existing  creditors  by  con- 
tracting other  indebtedness  in  a  like  amount,  and 
wherein  the  subsequent  creditors  are  subrogated  to  the 
rights  of  the  creditor  whose  debts  their  means  have- 
been  used  to  pay;  cases  in  which  one  makes  a  convey- 
ance to  avoid  the  risks,  or  losses,  likely  to  result  from 

B28  Fnllinpton  v.  Northwostorn  pto.  Assn..  48  'NTinTi.  4^0,  HI  Am.  St. 
Rpp.  GG3;  Bloom  v.  Moy,  43  Minn.  307.  10  Am.  St.  Rep.  24.3.  . 


621  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  1.^7 

new  business  ventures,  or  speculations.  Tlie  follow- 
ing authorities  will  be  found  to  support  the  above  rules 
and  exceptions:  Wait  on  Fraudulent  Conveyances,  §§ 
96,  97,  98,  100;  Bump  on  Fraudulent  Conveyances,  4th 
ed.,  §§  290,  203,  290,  300;  2  Pomeroy's  Equity  Jurispru- 
dence, §§  971-973;  1  Am.  Lead.  Cas.,  5th  ed.  42,  notes. 
We  have  not  overlooked  the  fact  that  there  are 
respectable  authorities  holding  that  a  conveyance  ac- 
tually fraudulent  as  to  the  existing  creditors  may, 
for  that  reason  alone,  be  avoided  by  subsequent  credit- 
ors. We  are  not,  however,  prepared  to  assent  to  the 
correctness  of  such  a  doctrine."  °^  Fraudulent  con- 
veyances may  be  divided  into  two  classes:  1.  Those 
made  with  intent  to  defraud  creditors;  and  2.  Those 
made  without  any  evil  intent,  but  deemed  fraudulent 
because  their  operation  may  result  in  witlidrawing 
property  from  the  reach  of  creditors.  Of  this  latter 
class  are  voluntary  conveyances  made  under  the  im- 
pulse of  friendship  or  affection,  and  without  any  de- 
sign to  injure  any  one.  The  law  deals  more  leniently 
with  them,  and  does  not  permit  them  to  be  avoided 
by  persons  upon  whom  they  could  inflict  no  injury.  A 
voluntary  conveyance  made  bona  fide  is  valid  a2:ainst 
subsequent  creditors.  They  cannot  complain  because 
their  debtor,  prior  to  the  debt,  chose  to  give  his  prop- 
erty away.  If  the  grantor  was  free  from  debts  when 
bis  conveyance  was  made,  but  it  can  be  shown  that  he 
intended  to  become  indebted  to  another,  and  defraud 
him  by  means  of  such  conveyance,  then  it  is  void  as 
against    creditors.**^®     A    voluntary    conveyance    free 

B29Brunda!re  v.  Clieneworth.  101  Ta.  250.  fi3  Am.  St.  Rop.  382; 
Rollins  V.   Shaver  etc.  Co..  80  la.  380.  20  Am.   St.  Rep.  427. 

030  Littleton  v.  Littleton.  1  Dev.  &  B.  327:  Ridseway  v.  T'nder- 
wood,  4  Wash.  C.  C.  129;  Stileman  v.  Ashdown.  2  Atk.  481;  Barlin? 


§  137a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  G22 

from  any  intent  on  the  part  of  the  grantor  to  defraud 
his  creditors,  while  it  cannot  be  sustained  as  against 
existing  creditors  whom  it  must  hinder,  delay,  or  de- 
fraud, if  permitted  to  stand,  can,  nevertheless,  not  be 
avoided  by  them,  except  to  the  extent  to  which  it 
prejudices  them  in  contemplation  of  law  when  made. 
Hence,  if  a  judgment  is  recovered  based  upon  indebted- 
ness, part  of  which  existed  before  the  voluntary  con- 
veyance was  made  and  the  remainder  of  which  was 
created  afterward,  the  judgment  creditor  is  not  enti- 
tled to  relief  from  the  voluntary  conveyance,  except  as 
to  the  portion  of  the  indebtedness  merged  in  the  judg- 
ment and  existing  anterior  to  the  conveyance  as- 
sailed.^^^ 

§  137  a.  Who  are  Creditors  in  Favor  of  Wliom  a 
Transfer  may  be  Held  Fraudulent.— The  term  "creditors," 
as  employed  in  the  statutes  and  decisions  concerning 
fraudulent  and  voluntary  conveyances,  is  not  used  in 
any  narrow  or  technical  signification,  but  includes  all 
persons  whose  interests  might  be  defrauded  by  the 
transfer.  Wherever  there  exists  a  right  or  obligation 
for  the  invasion  or  disregard  of  which  a  judgment  may 
be  entered,  a  transfer  made  with  the  view  of  render- 
ing such  judgment  ineffectual  is  doubtless  fraudulent, 
and  therefore  void  as  against  the  interest  sought  to  be 
defrauded.     Thus,  if  one  has  committed  any  tort  for 

V.  Bishopp,  29  Beav.  417;  Howe  v.  Ward,  4  Me.  195;  Black  v.  Nease, 
37  Pa.  St.  433;  Graham  v.  O'Keeffe.  16  Irish  Ch.  1;  Tarback  v, 
Marbury,  2  Vern.  509;  New  Haven  St.  Co.  v.  Vanderbilt,  16  Conn. 
420;  Cook  v.  .Tolinson,  1  Beasl.  51,  72  Am.  Dec.  381;  National  Bank 
V.  Sprague,  20  N.  .T.  Eq.  13;  Murphy  v.  Abraham.  15  Irish  Eq.  N.  S., 
371;  Miller  v.  Wilson,  15  Ohio,  108;  Lyman  v.  Cessford,  15  Iowa, 
229;  Bogard  v.  Gardley,  4  Smedes  &  M.  302;  Williams  v.  Banks. 
11  Md.  198. 

631  Henderson  v.  Henderson,  135  Pa.  St.  399.  19  Am.  St.  Rep.  6.50. 


€23  PERSONAL  PJIOPERTY  SUBJECT  TO  EXIX  UTION.      §  137a 

which  he  may  be  answerable  in  daniaj^es,  the  p<'r.sou 
entitled  to  recover  such  damages  is  a  creditor,  and,  as 
such,  in  proceeding  to  obtain  satisfaction  of  a  judg- 
ment for  such  damages,  may  treat  as  void  any  transfer 
made  with  a  view  of  hindering  or  delaying  him  in  his 
attempt  to  realize  such  satisfaction.'-'-  Lhnce,  a 
transfer  to  prevent  the  satisfaction  of  a  judgment 
which  might  be  recovered  against  the  grantor  for  a 
slander  uttered  by  him,'"'"^-'  or  for  seduction  or  breach  of 
promise  of  marriage, •'^^*  or  for  alimony,  or  other  mon- 
eys to  which  a  wife  is  entitled  from  her  husband,""'^^ 
may  be  regarded  as  fraudulent  and  void.  "^Vhile  it  is 
true  that  a  claim  for  alimony  is  not  a  debt  within  the 
ordinary  meaning  of  that  term,  and  that  it  must  be  as- 
certained and  allowed  according  to  equitable  prin- 
ciples, yet  it  is  also  true  that  it  is  a  right,  contingent 
to  some  extent,  which  becomes  vested  with  the  right 
to  divorce.  It  can  no  more  be  defeated  by  a  fraudu- 
lent conveyance  than  it  could  be  if  it  were  fixed  and 
certain  as  to  amount."  °^° 

532  Barlinp:  v.  Bishopp.  29  Beav.  417;  Fox  v.  Hills.  1  Conn.  205; 
Westmoreland  v.  Powell,  59  Ga.  25G;  Bougard  v.  Block,  81  111.  186, 
25  Am.  Rep.  276;  Weir  v.  Day.  57  Iowa.  87;  Cooke  v.  Cooke.  4.3 
Md.  522:  Hoffman  v.  Junk,  51  Wis.  613;  Harris  v.  Harris.  23  Gratt 
737;  Patrick  v.  Ford.  5  Sneed,  532.  note;  Philbrick  v.  O'Connor.  15 
Or.  15.  3  Am.  St.  Rep.  1.39. 

533  Walradt  v.  Brown.  1  Gilm.  397,  41  Am.  Dec.  190;  Lillard  v. 
McGee,  4  Bibb.  165;  Farnsworth  v.  Bell.  5  Sneed,  531;  Helms  v. 
Green,  105  N.  C.  251,  18  Am.  St.  Rep.  893. 

634  Lowry  v.  Pinson,  2  Bail.  324,  23  Am.  Dec.  140;  Smith  v.  Cul- 
bertson,  9  Rich.  lOG;  HoCfman  v.  Junk,  51  Wis.  613;  Greer  v.  Wright. 
6  Gratt.  154,  52  Am.  Dec.  Ill;  McVeigh  v.  Retenour,  46  Oh.  St.  107; 
Tyler  v.  Tyler,  126  111.  525.  9  Am.  St.  Rep.  642. 

635  Feigloy  v.  Feigley,  7  Md.  537,  61  Am.  Doc.  375;  Sanborn  v. 
Lang,  41  Md.  107;  Taylor  v.  Wyld,  8  Beav.  159;  Draper  v.  Draper. 
<>8  111.  17;  Chase  v.  Chase,  105  Mass.  385;  Bouslough  v.  Bousloiigh. 
68  Pa.  St.  495;  Livermore  v.  Routelle,  11  Gray,  217,  71  Am.  Doc. 
7aS;  Boils  v.  Boils,  1  Cold.  2S4;  Plunkett  v.  Plunkett,  114  Ind.  484. 

636  Picket  V.  Garrison,  70  la.  347.  14  Am.  St.  Rep.  220. 


§  137a     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  624 

Sometimes  it  has  been  held  that  one  having  a  claim 
for  a  tort  is  not  entitled  to  protection  as  a  creditor,, 
unless  he  has  commenced  an  action  for  the  damages  oc- 
casioned to  him  thereby.^^''  This  question  has  not  been 
very  carefully  considered,  but,  upon  principle,  there 
seems  to  be  no  reason  for  attaching  any  importance  to 
the  pendency  of  the  action,  except  that  the  known  pen- 
dency of  an  action  might  render  it  more  probable  that 
the  transfer  was  fraudulent,  and  intended  to  avoid  a 
claim  which  the  parties  had  reason  to  believe  would  be 
prosecuted  to  judgment.  But  a  plaintiff  is  no  more  a 
creditor  after  commencing  an  action  than  before.  His 
cause  of  complaint,  whatever  it  may  be,  must  exist  an- 
terior to  the  commencement  of  his  action,  and  is  of 
precisely  the  same  character  after  such  commencement 
as  before.  If  any  change  takes  place  in  the  cause  of 
action,  it  cannot  be  prior  to  its  merger  in  the  judg- 
ment. Nor  does  the  mere  pendency  of  the  action  cre- 
ate any  lien  upon  any  property.  The  better  opinion, 
therefore,  is,  that  one  having  a  claim  for  a  tort  is  a 
creditor  before  the  commencement  of  an  action  thereon 
as  well  as  after,  and,  as  such  creditor,  is,  upon  recover- 
ing judgment,  entitled  to  avoid  a  fraudulent  transfer 
antedating  the  commencing  of  hi«  action. ^^^ 

If  a  judgment  is  based  on  a  contract,  the  judgment 
creditor's  right  to  be  treated  as  a  creditor  relates  back 
to  the  date  of  the  execution  of  the  original  contract. 
Hence,  he  ma^''  treat  as  void  any  fraudulent  transfer 
executed  subsequently  to  the  contract  on  which  the 
judgment  was  based.  The  transfer  cannot  be  supported 

637  Hill  V.  Bowman.  3.'»  Mich.  101.  in  which  case  tho  opinion  is  upoa 
this  snbicct  a  mere  dictum. 

53«  Coi-fler  V.  Williams,  40  Iowa,  582;  Shean  v.  Shay,  42  Ind.  375, 
13  Am.   Rep.   3G6. 


C25  PERSONAL  rilOPERTY  SUBJECT  TO  EXECUTION.      §  I37a 

by  showing  that  when  it  was  made  the  judgment  cred- 
itor's debt  had  not  become  due,'"'"*  and  it  could  not  then 
have  been  known  that  any  cause  of  action  against  him 
would  ever  result  from  the  contract.  Tlicrcfore,  if  a 
bond  be  given,  a  fraudulent  transfer,  made  subse- 
quently, but  before  breach  of  its  condition,  may  be 
avoided  as  well  as  if  executed  after  such  breach.'*'** 
"Another  principle  equally  well  settled  is,  that  the  lia- 
bilit}'  of  the  surety  on  an  administrator's  bon<l,  or  other 
contingent  obligation,  makes  him  a  creditor  Avithin  the 
statute  of  frauds,  from  the  date  of  the  contract,  and 
though,  generally,  he  has  no  cause  of  action  until  he 
has  paid  the  debt,  he  is  entitled  to  protection  against 
fraudulent  conveyances  executed  by  the  principal 
debtor  in  the  meantime."  ^^^  The  same  rule  prevails  re- 
specting other  contingent  liabilities,'''*^-as  where  the 
transferrer  was,  at  the  date  of  the  transfer,  a  surety, 
guarantor,  or  indorser,  and  it  was  not  known  that  he 
would  ever  be  called  upon  to  pay  the  debt.^^^  The 
liability  of  a  grantor,  under  his  covenant  of  warranty, 
does  not  differ  in  principle  from  other  contingent  lia- 
bilities, and  a  fraudulent    conveyance,  made    at   any 

639  Howe  V.  Ward,  4  Me.  195;  Cook  v.  .fohuson,  12  N.  J.  Eq.  51, 
72  Am.  Dec.  381;  Wooten  v.  Steele,  109  Ala.  5G3,  55  Am.  St.  Rep. 
947;  Du  Rant  v.  Dii  Rant.  3G  S.  C..49. 

540  Thompson  v.  Thompson.  19  Me.  244,  36  Am.  Deo.  T.")!;  Stone 
V.  Myers,  9  Minn.  303,  80  Am.  Dec.  104;  Carlisle  v.  Rich.  8  N.  H. 
44;  Anderson  v.  Anderson,  64  Ala.  403;  Sodcn  v.  Soden,  34  N.  J. 
Eq.  115. 

641  Yeend  v.  Weeks,  104  Ala.  331,  53  Am.  St.  Rep.  50. 

642  Bibb  V.  Freeman,  59  Ala.  612;  Post  v.  Stiger,  29  N.  J.  Eq.  554. 
543  Jackson  v.   Seward,  5  Cow.  67;  Cramer  v.  Reford,   17  N.  J. 

Eq.  367,  90  Am.  Dec.  594;  McLaughlin  v.  Bank,  7  How.  220;  Bay 
V.  Cook,  31  111.  336;  Gibson  v.  Love,  4  Fla.  217;  Crane  v.  Stickles, 
15  Vt.  252;  Curd  v.  Millers  Ex'r,  7  Gratt.  185;  Keel  v.  Larkiu,  72 
Ala.  493. 

Vol.  I.— 10 


g  i:57a     PERSONAL  TROPERTY  SUBJECT  TO  EXECUTION.  626 

time  after  such  covenant,  ought  to  be  regarded  as  void 
as  against  a  judgment  thereon.*^^* 

If  debts  exist  when  a  fraudulent  conveyance  is  made, 
a  change  in  their  form,  or  in  the  persons  to  whom  they 
are  due,  is  immaterial.  Subsequent  creditors  from 
whom  means  were  obtained  to  pay  off  the  antecedent 
creditors  are  entitled  to  treat  the  conveyance  as 
void.**^^  So,  if  the  grantor  of  a  voluntary  conveyance 
is  then  indebted  to  one  with  whom  he  continues  to  do 
business  and  to  have  an  account,  and  the  payments 
afterward  made  by  the  debtor  are  sufiicient,  if  applied 
to  the  debt  existing  at  the  transfer,  to  extinguish  it, 
but  by  reason  of  subsequent  purchases  by,  or  other 
proper  charges  against,  the  grantor,  the  balance  due 
from  him  exceeds  that  due  at  the  date  of  the  transfer, 
then  the  creditor  has  all  the  equity  of  one  whose  debt 
wholly  antedated  the  transfer.®"*® 

In  New  Jersey,  the  decisions  are,  we  think,  not  capa- 
'ble  of  reconciliation  with  the  rules  hereinbefore  stated. 
In  that  state  it  appeared  that  the  maker  of  a  note  pro- 
cured an  accommodation  indorser  thereon,  and  there- 
after, but  before  the  dishonor  of  the  note,  made  a 
voluntary  conveyance  of  real  proi>erty  without  any  in- 
tention to  defraud.  The  note  was  afterward  dishon- 
ored, and  the  indorser  compelled  to  pay  it.  The  ques- 
tion then  arose  whether  he  was  a  creditor  of  the  gran- 
tor of  the  voluntary  deed  at  the  time  of  its  execution, 

B44  Rhodes  V.  Green,  36  Ind,  7;  Gannard  v.  Eslava,  20  Ala.  741; 
Bement  v.  Ohio  Valley  etc.  T.  Co.,  99  Ky.  109,  59  Am.  St.  Rep.  445; 
contra,  Bridgeford  v.  Riddell,  55  111.  261. 

645  Paulk  V.  Cooke,  .30  Conn.  566;  Barbydt  v.  Perry.  57  Iowa.  416: 
Mills  V.  Morris,  Hoff.  Ch.  410;  Savage  v.  Murpliy,  .34  N.  Y.  50S,  90 
Am.  Dec.  733;  McEhvee  v.  Sutton,  2  Bail.  128;  Kellogg  v.  Douglas 
Co.  Bank,  .58  Kan.  43.  62  Am.  St.  Rep.  .506. 

646  Whittington  v.  Jennings,  6  Sim.  403;  3  L.  J.,  N.  S.  157. 


€27  PERSONAL  I'llOPEUTY  SUBJECT  TO  EXECUTION.        §  138 

SO  that  it  must  be  presuinod  to  be  fiaudiileut  with  re- 
spect to  his  debt.  The  court  answered  this  question 
in  the  negative,  saying:  "When  a  man  is  in  debt,  espe- 
cially if  such  debts  be  due,  it  is  certainly  not  irrational 
to  infer,  if  he  give  away  his  property-,  that  the  inten- 
tion was  to  defeat  such  claims,  but  such  deduction 
would  seem  to  be  most  extravagant  if,  instead  of  a 
present  indebtedness,  he  has  incurred  a  mere  liability 
as  a  warrantor  of  title,  as  a  tort  feasor,  or  as  surety  on 
an  administrator's  bond.  If  such  responsibilities  as 
these  latter,  which  may,  in  the  long  run,  be  transformed 
into  debts,  should  have  the  effect  of  invalidating  volun- 
tary' settlements  of  property,  then  such  settlements 
would  be  the  most  uncertain  of  legal  transactions.  It 
is  plain  that  by  force  of  so  absurd  a  principle  all  dona- 
tions would,  in  a  measure,  be  made  contingent,  and 
would  many  times  remain  so  beyond  the  lives  of  the 
donor  and  donee.  The  result,  therefore,  is  that,  in  or- 
der to  bring  a  case  within  the  operation  of  the  rule  in 
question,  there  must  be  a  present  indebtedness,  and 
not  a  mere  probability  of  future  indebtedness."  ^^"^ 

§  138.  What  Kinds  of  Property  may  be  Taken  from 
Fraudulent  Grantee. — The  kinds  of  property  which  may 
be  levied  upon  as  that  of  the  fraudulent  grantor  em- 
brace everything  which  could  have  been  subjected  to 
execution  in  his  hands  if  no  conveyance  had  been  made. 
In  other  words,  the  laws  against  fraudulent  convey- 
ances are  applicable  to  every  species  of  property  which 
the  grantor's  creditors  could  have  lawfully  had  appro- 
priated to  the  payment  of  their  demands.""'^**     But  it 

547  Severs  v.  Dodson.  53  N.  .T.  Eq.  033,  51  Am.  St.  Rep.  nil. 

548  Bump  on  Fraudulent  Conveyances,  2(13.  2(14:  Bank  v.  Ballard, 
12  Rich.  259;  Garrison  v.  Monaghan,  33  Pa.  St.  232. 


§  139       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  C2S 

is  evident  that  creditors  cannot  be  defrauded,  hindered, 
nor  delayed  by  the  transfer  of  property  which,  neither 
at  law  nor  in  equity,  can  be  made  to  contribute  to  the 
satisfaction  of  their  debts.^"*'**  Hence,  it  is  almost  uni- 
versally conceded  that  property  which  is  by  statute 
exempt  from  execution  cannot  be  reached  by  creditors 
on  the  ground  that  it  has  been  fraudulently  trans- 
ferred.^^" The  transfer  is  effectual  between  the  par- 
ties, and  neither  will  be  permitted  to  evade  its  force  by 
showing  that  it  was  without  consideration  and  in- 
tended to  defraud  creditors.  If  the  fraudulent  gTantee 
of  a  homestead  should  reconvey  the  property  to  the 
grantor,  it  must  be  regarded  as  a  new  acquisition,  and 
subject  to  execution  to  the  same  extent  as  if  the  first 
conveyance  had  not  been  intended  to  defraud  credit- 

§  139.  Origin  of  the  Law  against  Fraudulent  Trans- 
fers.— Whether  the  result  of  fraudulent  transfers,  as> 
stated  in  the  three  preceding  sections,  was  fully  recog- 
nized at  common  law,  may,  perhaps,  admit  of  some 
doubt.  At  all  events,  Parliament  saw  proper  not  to 
rest  entirely  upon  common-law  rules,  but  to  enact  sev- 

B49  Winebrinner  v.  Weisiger.  3  T.  B.  Mon.  33;  Dearman  \.  Dear- 
man,  4  Ala.  521;  Planters'  Bank  v.  Henderson,  4  Humph.  75. 

550  Bond  V.  Seymour,  1  Chand.  40;  Smith  v.  Allen.  39  Miss.  4<i9: 
Legro  V.  Lord.  10  Me.  ICA:  Lishy  v.  Perry,  6  Bush.  515;  Yaughan  v. 
Thompson,  17  111.  78;  Pike  v.  Miles,  23  Wis.  164.  09  Am.  Dec.  148; 
Wood  V.  Chambers,  20  Tex.  247,  70  Am.  Dec.  .382;  Foster  v.  Mc- 
Gregor, 11  Vt.  505.  34  Am.  Dec.  713;  Cox  v.  Shropshire.  2.".  Tex.  113; 
Bean  v.  Smith,  2  Mason,  252;  post,  §  218;  Crummen  v.  Bennett,  OS 
N.  C.  494;  Dortch  v.  Benton,  98  N.  C.  390;  Bank  of  Versailles  v. 
Guthrey,  127  Mo.  ISO.  48  Am.  St.  Rep.  021;  Pipkin  v.  Williams,  57 
Ark.  242,  38  Am.  St.  Rep.  241:  Union  P.  Ry.  v.  Sinersh.  22  Neb.  751, 
3  Am.  St.  Rep.  300;  Blair  v.  Smith.  314  Ind.  314.  5  Am. St.  Rep.  503; 
Freehling  v.  Bresnahan,  01  Mich.  .540,  1  Am.  St.  Rep.  617;  Ansgoro 
V.  Barth,  88  Wis.  5.53,  43  Am.  St.  Rep.  920. 

651  Butler  V.  Nelson,  72  Iowa,  732. 


<i29  TERSONAL  PllOrEllTY  SUBJECT  TO  EXECUTION.        §  139 

«ral  vStatutes,  ^^^  all  desij^ned  to  prevent  persons  from 
taking  advantage  of  their  own  frauds.  It  is  claimed 
that  these  statutes  were  but  declaratory  of  the  common 
law,  and  that  every  wrong  to  which  they  have  been 
xipplied  was  susceptible  of  equally  successful  treat- 
ment without  their  aid.^'^^  At  all  events,  it  seems  not 
to  be  necessary,  at  the  present  day,  to  show  that  an 
alleged  fraudulent  device  falls  within  the  provisions  of 
either  of  these  statutes;  and  we  may,  therefore,  assume 
that  every  transfer,  pledge,  or  lien  made  with  intent  to 
delay,  hinder,  or  defraud  creditors  is,  as  against  such 
creditors,  void,  whether  it  assumes  some  one  of  the 
forms  designated  by  these  statutes,  or  takes  some 
shape  hitherto  unknown  and  undescribed.'"'^  It  be- 
comes, therefore,  of  the  highest  importance  that  per- 
sons seeking  to  harvest  the  fruits  of  their  judgments 
should  be  enabled  to  determine  whether  property, 
formerly  belonging  to  the  defendant,  but  transferred 
by  him  to  another,  may  still  be  taken  and  appropriated 
to  the  payment  of  his  debts,  on  the  ground  that  the 
transfer  was  void  as  against  creditors.  The  subject  of 
fraudulent  liens  and  transfers  is  of  such  importance, 

552  Stat.  50  Edw.  Ill,  c.  G;  3  Hen.  VII.  c.  4;  13  Eliz.,  c.  5;  27  Ellz., 

<.  4. 

553  Cadosran  v.  Kennett,  Cowp.  432:  Clnvk  v.  Douglass.  02  Pa.  St. 
408;  Barton  v.  Vanheythuysen.  11  Hare.  1.32;  Clements  v.  Moore,  fi 
Wall.  312;  I'eck  v.  T^and,  2  Kelly,  10.  4G  Am.  Dec.  3GS;  Hudnal  v. 
W'ilder.  4  McCord.  294,  17  Am.  Dec.  744. 

654  "Whenever  the  statute  is  ineffective,  either  throiiirh  a  chancre 
of  custom  or  the  introduction  of  a  now  kind  of  property,  or  the 
concocting  of  some  now  device,  there  the  common  law  intervenes 
with  it.s  pure  and  elevated  principles  of  morality  and  justice,  and 
enforces  the  dictates  of  common  honesty  and  common  sense.  In 
other  words,  the  common  law  supplements  the  statute,  to  the  end 
that  justice  may  be  done  and  every  species  of  fraud  suppressed." 
Bump  on  Fraudulent  Conveyances,  oO;  Blackman  v.  Wheaton,  13 
Minn.  .320;  Fox  v.  Hills,  1  Conn.  20.":  State  v.  Fife.  2  Bail.  .337;  Lil- 
lard  V.  McGee,  4  Bibb.  IG.");  Taylor  v.  Ilcriot.  4  Desaus.  227. 


§  140       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  630 

and  has  given  rise  to  so  many  reported  adjudications^ 
that  it  cannot  be  treated  with  desirable  fullness  within 
the  limits  of  this  work.  And,  fortunately,  such  treat- 
ment is  not  now  necessary,  because  of  the  research  and 
ability  already  devoted  to  it  in  the  notes  to  Twyne's 
Case  in  1  Smith's  Leading  Cases;  in  the  notes  to  Sexton 
V.  Wheaton,  Salmon  v.  Bennett,  Thomas  v.  Jenks,  and 
Grover  v.  Wakeman,  1  American  Leading  Cases;  in 
Kerr  on  Fraud  and  Mistake,  with  American  notes  by 
Mr.  O.  F.  Bump;  and,  finally,  in  a  more  elaborate  form, 
in  Mr.  Bump's  excellent  treatise  on  fraudulent  convey- 
ances. The  subject  is,  however,  so  intimately  con- 
nected with  the  law  of  executions  that  we  mu^t  give 
it  some  further  consideration.  We  shall  endeavor  to 
show,  in  the  briefest  manner  possible — 1.  Who  are  the 
persons  from  w^hose  hands  the  property  cannot  be 
taken  under  execution  against  the  fraudulent  vendor; 
2.  The  most  important  classes  of  cases  in  which  trans- 
actions are  regarded  as  fraudulent,  prima  facie  or  per 
se,  owing  to  the  nature  of  the  transfer,  and  independent 
of  any  evidence  showing  the  actual  intent;  and  3.  When 
and  where  the  retention  of  possession  by  the  vendor 
is  conclusive  proof  of  fraud. 

§  140.  Persons  whose  Rights  cannot  be  Affected  by 
Showing  that  Transfer  was  Fraudulent.— The  general 
statement  that  transfers  or  liens  made  to  hinder,  de- 
lay, or  defraud  creditors  are  void  against  the  persons 
sought  to  be  so  prejudiced  or  defrauded,  must  always 
be  understood  with  this  qualification — that  the  rule  is 
not  to  be  applied  against  persons  who  have  obtained 
interests  in  the  property  in  good  faith,  and  for  a  valu- 
able consideration.'*^^     The  law  does  not  intei'pose  in 

1555  A  pnroliasor  from  a  fr;ni(lul(>nt  vondco.  in  sicxhI  faitli  and  for 
value,  will  hold  the  propei'ty  against  a  creditor  wlio  had  issued  an 


*J31  I'EllSONAL  rilOPERTY  SUaJECT  TO  EXECUTION.        §  140 

favor  of  creditors  as  against  persons  who  are  i:inocent 
of  all  participation  in  the  fraud;  Avbo  have  not  assisted 
it  by  act,  design,  or  neglect;  who  have  had  neither  no- 
tice nor  knowledge  of  its  existence;  and  have  parted 
with  valuable    consideration    upon  their  faith  in  the 
transfer,  which,  in  the  end,  may  be  shown  to  have  been 
fraudulent. •'•'*"     It  is  not  sufficient  that  the  person  in 
whose  hands  the  property  is  found  can  show  that  he 
has  acquired  it  for  a  valuable  consideration,  or  that  he 
has  acquired  it  in  good  faith.     Tie  must  surrender  the 
property  to  the  creditors,  unless  he  can  show  that  his 
acquisition  is  sustained  both  by  good  faith  and  by  a 
valuable  consideration.     "An  inquiry  into    the    good 
faith  of  the  grantee  is  only  necessary  when  there  is  a 
valuable  consideration  for  the  transfer.     The  mere  ac- 
ceptance of  a  transfer,  without  a  valuable  considera- 
tion, is  of  itself  sufficient  evidence  of  a  participation  in 
the  debtor's  fraudulent  intent."  ^^"^    If  no  valuable  con- 
sideration existed,  the  transaction  is  per  se  fraudulent 
as  against  creditors  whom  it  would  hinder  or  delay  if 
permitted  to  stand.     No  evidence  of  the  intent  of  the 
parties  can  be  received.     The  inference  of  the  law  is 
irresistible.     But  the  consideration  paid,  though  valu- 

executlon,  but    bad  not    levied  it  when  such    purchase  was  made. 
Younfr  V.  Lathrop,  G7  N.  C.  G3,  12  Am.  Eep.  603. 

556  Smith  V.  Selz,  114  Ind.  229;  Carnahan  v.  McCord.  116  Ind.  67; 
Des  Moines  I.  Co.  v.  Lent,  7.5  la.  522;  Iledman  v.  Anderson,  6  Neb. 
392;  Paul  v.  Bauirh.  8.">  Va.  955. 

557  Bump  on  Fraudulent  Conveyances.  229;  Taylor  v.  .Tones.  2  Atk. 
600;  Stronjx  v.  Slnuiir,  IS  Beav.  40S;  Goldsmith  v.  Russell.  5  De  Gex. 
M.  &  G.  547;  Belt  v.  liasuet,  27  Tex.  471;  Newman  v.  Cordell,  43 
Barb.  44S;  Peck  v.  Carniichael.  9  Yerg.  325;  Gamble  v.  Johnson.  9 
Mo.  605;  Swartz  v.  Hazlett,  S  Cal.  118;  Wise  v.  Moore.  31  Ga.  148; 
Lee  V.  Figg,  37  Cal.  328.  99  Am.  Dec.  271:  Hicks  v.  Stone.  13  Minn. 
434;  Clark  v.  Chamberlin.  13  Allen.  257;  Lyons  v.  Leahy.  15  Or.  8, 
3  Am.  St.  Rep.  133;  note  to  Ilagerman  v.  Buchanan,  14  Am.  St.  Rep. 
748. 


§  HI       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  632 

able,  may  have  been  inadequate.  The  inadequacy  of 
the  consideration  does  not  necessarily  avoid  the  trans- 
fer. It  is,  however,  a  material  fact,  to  be  considered 
by  the  jury  as  a  badge  of  fraud;  and  may  operate  to 
avoid  the  transfer  when,  either  alone  or  in  connection 
with  other  facts,  it  produces  the  conviction  that  the 
transfer  was  not  made  in  good  faith.®*"'*  Though  the 
vendee  had  guilty  knowledge  of  the  fraudulent  purpose 
of  the  transfer,  he  may,  in  turn,  transfer  to  another, 
and  this  latter  may  hold  the  property,  notwithstanding 
the  knowledge  of  his  immediate  vendor,  if  he  himself 
was  innocent  and  purchased  for  a  valuable  considera- 
tion.®^'* On  the  other  hand,  if  the  original  vendee  was 
innocent,  and  therefore  entitled  to  hold  the  property 
against  the  vendor's  creditors,  he  may  transfer  an  in- 
defeasible title  to  another,  whether  the  latter  had 
guilty  knowledge  or  not.®^** 

§  141.  Good  Faith  of  the  Holder  of  Property  Trans- 
ferred in  Fraud. — The  mere  payment  of  a  valuable  and 
sufficient  consideration  is  by  no  means  conclusive  in 
favor  of  the  holder  of  property  which  has  been  fraudu- 
lently transferred.  On  the  contrary,  if  it  be  shown 
that  the  holder  did  not  acquire  the  property  in  good 
faith,  it  is  immaterial  whether  he  paid  full  value  or  no 

558Monoll  V.  Sfherrick.  54  111.  209;  Kaine  v.  Weisloy,  22  Pa.  St. 
179;  Trimble  v.  Ratcliff,  9  B.  Mon.  511;  Robinson  v.  Robards,  15  Mo. 
459;  Lee  v.  Hunter,  1  Paige,  519;  Barrow  v.  Bailey.  5  Fla.  9:  Sea- 
mans  V.  White,  8  Ala.  656;  Knykendall  v.  ISIcDonald.  15  Mo.  416. 
57  Am.  Dec.  212;  Arnold  v.  Bell,  1  Hayw.  (N.  C.)  396;  Bryant  v 
Kelton,  1  Tex.  415;  Penhall  v.  Elwin,  1  Smale  &  G.  2.58. 

B59  Zoeller  v.  Riley,  100  N.  Y.  402,  53  Am.  Rep.  157;  Neal  v.  Greg- 
ory, 19  Fla.  356;  Scheble  v.  Jordan,  30  Kan.  353;  Mansfield  v.  Dyer, 
131  Mass.  200. 

oco  Evans  v.  Nealis,  69  Ind.  148;  Stiidabaker  v.  Langard.  70  Ind. 
320;  Fulton  v.  Woodman,  59  Miss.  159;  Allison  v.  Hagan,  12  Nev. 
38. 


<33  PEllSONAL  I'lLOrEUTV  SUBJECT  TO  EXECUTION.        §  Ul 

value. ^"*'  That  the  transaotion  was  to  liindor,  delay, 
or  defraud  creditors  is  suilieieut  to  annul  it,  unless  tlie 
person  into  whose  hands  the  property  has  c-ome  is  guilt- 
less of  all  complicity-  in  the  fi'au(lul<-nt  intent,  and  is 
ignorant  of  its  existence.  The  aciiuisition  of  the  prop- 
erty, though  for  full  value,  is  not  in  good  faith  when 
the  purchaser  participated  in  the  grantor's  fraudulent 
intent,  nor  when,  without  participating  in  such  inti'ut, 
he  had  notice  of  its  existence.  The  cases  in  which  ac- 
tual knowledge  can  be  proved  are  not  likely  to  be  fre- 
quent; for  people  engaged  in  the  in'osecution  of  fraudu- 
lent schemes  seek  to  conceal  all  direct  evidences  of 
their  purposes  and  intentions,  and  true  relations  to  the 
business  in  hand.  But  notice  may  be  inferred  where 
actual  knowledge  cannot  be  established.  The  pur- 
chase will  be  regarded  as  mala  fide  where,  at  any  time 
prior  to  the  payment  of  the  purchase  money,'"-  the 
purchaser  had  "knowledge  of  facts  sufficient  to  excite 

Bci  W^orseley  v.  De  Mattos.  1  Burr.  474;  Bott  v.  Smith,  21  Boa  v. 
516;  Ilarman  v.  Richards,  10  Hare,  SI;  Thompson  v.  "Webster,  4 
Drew.  628;  7  Jur.  N.  S.  531;  Lloyd  v.  Attwood.  3  De  Gex  &  J.  655; 
Fraser  v.  Thonii)son,  4  De  Gex  &  .J.  650;  Corlett  v.  Radeliffe.  14 
Moore  P.  G.  C.  121;  Holmes  v.  Penney.  3  Kay  &  J.  90;  Harrison 
V.  Kramer.  3  Clarke,  543;  Wood  v.  Chambers.  20  Tex.  247.  70  Am. 
Dec.  382;  Stein  v.  Hermann.  23  Wis.  132:  Pulliam  v.  Newberry,  41 
Ala.  168;  Harrison  v.  Jaquess.  20  Ind.  208;  Sayre  v.  Fredorieks.  16 
N.  J.  Eq.  205;  Robinson  v.  Holt,  39  N.  II.  557,  75  Am.  Dec.  233; 
Zerbe  v.  Miller,  16  Pa.  St.  488;  Pettus  v.  Smith,  4  Rich.  Eq.  197; 
Brown  v.  Force,  7  B.  Mon.  357,  46  Am.  Doc.  510;  Boidlor  v.  Crane. 
135  111.  92,  25  Am.  St.  Rep.  349;  State  v.  Parsons,  147  lud.  570.  62 
Am.  St.  Rep.  430;  Lane  v.  Starkoy.  15  Neb.  2S5;  ClialVoe  v.  Gill.  4:'. 
La.  Ann.  1054;  Eiirenbrun  v.  Siiiiili,  98  N.  C.  207;  Rennlnijor  v.  Spatz, 
128  Pa.  St.  525,  15  Am.  St.  Rop.  ()!>2;  Fluo-iol  v.  Ilonscliol,  7  N.  D.  76. 
■66  Am.  St.  Rep.  642. 

5C2  Parkinson  v.  Ilanna.  7  Blackf.  400;  Story  v.  Windsor.  2  Atk. 
€30;  Hardingham  v.  Nicholls,  3  Atk.  304;  Yonns:  v.  Kellar.  04  Mo. 
581.  4  Am.  St.  Rep.  405;  Schloss  v.  Feltus,  90  Mich.  619;  Price  v. 
McDonald,  1  Md.  403.  54  Am.  Dec.  657, 


§  141        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  Uot 

the  suspicions  of  a  prudent  man,  and  put  liim  on  in- 
quiry,^**^  or  to  lead  a  person  of  ordinary  perception  to 
infer  fraud."  °"*  It  is  sufiflcient  to  charge  the  purchaser 
with  notice,  that  by  ordinary  diligence  he  might  have 
known,  or  that  he  had  reason  to  know  or  believe,  what 
was  the  intent  of  the  transfer.^"^  The  notice  to  the 
vendee  which  renders  his  purchase  mala  fide  must  be 
in  regard  to  the  intent  to  hinder,  delay,  or  defraud. 
His  knowledge  of  the  financial  embarrassment  or  in- 
solvency of  the  vendor  is  not  sufficient;  "'''*'''  for  every 
man,  regardless  of  his  solvency,  has  the  right  to  sell 
and  transfer  his  property  at  any  time  before  it  is  made 
subject  to  writs  issued  by  his  creditors.  As  has  already 
been  intimated,  the  claim  to  protection  as  a  bona  fide 
purchaser  can  only  be  supported  by  showing  that  a 
conveyance  of  the  title  was  received  and  payment  made 
in  full  prior  to  receiving  notice  of  the  equity  against 
which  the  claim  is  made.  It  is  not  sufficient  that  the 
money  was  secured  to  be  paid  prior  to  receiving  such 

663  Green  v.  Tantum,  19  N.  J.  Eq.  105;  21  N.  J.  Eq.  3G4;  Atwoo-T 
V.  Impson,  20  N.  J.  Eq.  150;  .Tackson  v.  Mather.  7  Cow.  .301 :  INIills 
V.  noAveth,  19  Tex.  257,  70  Am.  Dec.  331;  Smith  v.  Henry,  2  Bail. 
118. 

664  WMght  V.  Brandis,  1  Ind.  336. 

065  Humphries  v.  Freeman,  22  Tex.  45;  Farmers'  Bank  v.  Doug- 
lass, 11  Smedes  &  M.  409;  Foster  v.  Gi-igsby,  1  Bush,  86;  Garahy 
V.  Bayley,  25  Tex.  Sup.  294.  But  there  are  authorities  which  seem 
to  require  that  the  vendee  should  participate  in  the  intent,  or  his 
I)urchase  will  be  deemed  in  good  faiili.  Seavy  v.  Dearborn,  19  N.  H. 
351;  Brown  v.  Foree,  7  B.  Mon.  357,  46  Am.  Dec.  519;  Sterling  v. 
Pvipley,  3  Chand.  166. 

606  Atwood  V.  Impson,  20  N.  J.  Eq.  150;  Sisson  v.  Roath.  30  Conn. 
15;  Bunyard  v.  Seabrook,  1  Fost.  &  F.  321;  Hughes  v.  Monty,  24 
Iowa,  499;  Loeschigk  v.  Bridge,  42  N.  Y.  421;  Meroliants'  N.  B.  v. 
Northrop,  22  N.  .T.  Eq.  58;  Boals  v.  Guernsey,  8  .Tohns.  446:  5  Am. 
Dee.  348;  Lyon  v.  Rood,  12  Vt.  233;  Albertoli  v.  Branham.  80  Cal. 
621,  13  Am.  St.  Rep.  200;  Toohler  v.  Cautonnet.  40  La.  Ann.  327- 
Contra,  Reinheimer  v.  Hemingway,  35  Pa.  St.  432. 


635  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  141 

notice,'*"''  tlioiigh  there  seems  to  be  a  growing  lendeiicy 
to  protect  a  purchaser  pro  tanto,  who  in  good  faith  paid 
a  portion  of  the  purchase  money  before  receiving  no- 
tice.°«« 

When  a  vendee  or  mortgagee  of  property  wliich  has 
been  conveyed  or  pledged  to  him  by  an  insolvent  debtor 
seeks  to  retain  it  on  the  ground  tiiat  he  is  a  purcliawer 
in  good  faith  and  for  valuable  consideration,  two  ques- 
tions necessarily  arise  for  consideration:  (1)  Had  he 
made  payment  therefor;  and  (2)  Was  such  payment 
comjileted  before  he  had  actual  knowledge  of  the 
fraudulent  purpose  on  the  part  of  the  vendor,  or,  at 
least,  before  he  had  notice  of  facts  which  were,  in  con- 
templation of  law,  equivalent  to  such  actual  knowl- 
edge? The  vendee  or  pledgee  may  have  also  been  a 
creditor,  and  the  property  may  have  been  given  or 
pledged  to  him  in  satisfaction  of,  or  as  security  for, 
his  debt,  and,  if  so,  the  transfer  will,  to  some  extent, 
operate  to  hinder  and  delay  otlu^r  creditors,  but  not  in 
any  unlawful  sense.  The  rule  is  unquestionably  set- 
tled that  it  is  no  objection  to  the  validity  of  a  convey- 
ance by  a  debtor  in  failing  circumstances  to  his  credi- 
tor that  it  operates  to  hinder  and  delay  other  creditors, 
that  it  was  mnde  with  an  intent  on  the  part  of  the 
debtor  that  it  should  so  operate,  and  that  the  creditor 

067  Dnjran  v.  Vattier,  3  Blackf.  245.  2.'>  Am.  Deo.  lO.';  Naiitz  v. 
McPherson.  7  T.  B.  :Mon.  597,  18  Am.  Dec.  210;  Callion  v.  McCaslin. 

I  Blackf.  91,  12  Am.  Dec.  208;  .Tewett  v.  Palmer.  7  .Tolins.  Cli.  fi.j, 

II  Am.  Dec.  401:  Jackson  v.  McCliesney.  7  Covr.  .1f!0.  17  Am.  Dec. 
521;  Union  Canal  Co.  t.  Youn?.  1  Whart.  410.  ?,()  Am.  Dor.  21:i: 
Blanchard  v.  Tyler.  12  Mirli.  330,  8G  Am.  Dec.  57;  Lewis  v.  PJiillips, 
17  Ind.  108.  79  Am.  Dec.  457. 

668  Fessler's  Appeal,  75  Pa.  St.  483;  Kit(criil;.'e  v.  Chapman.  .36 
Iowa,  348;  Hardin  v.  Harrington,  11  Bush.  307:  Haughwout  v. 
Murphy,  21  N.  J.  Eq.  118;  Digby  v.  Jones,  G7  Mo.  104. 


§  141        PERSONAL  rROrERTY  SUBJECT  TO  EXECUTION.  636 

receiving  it  was  aware  of  that  intent,  provided  he  re- 
ceived it  with  the  honest  purpose  of  securing  his  debt; 
but,  if  he  acted  from  a  desire  to  aid  the  debtor  in  de- 
feating other  creditors,  or  in  covering  up  his  property, 
or  in  giving  him  a  secret  interest  therein,  or  in  locking 
it  up  in  any  way  for  the  debtor's  own  use  and  benefit, 
the  conveyance  will  be  held  fraudulent  and  void.^**^ 

The  rule  is  generally  expressed  to  be,  that  a  creditor 
may  receive  payment  of  an  honest  debt  in  property  of 
his  insolvent  debtor,  although  he  may  know  at  the 
time  that  the  debtor's  intent  in  making  the  payment 
is,  and  that  the  necessar}^  effect  of  his  act  will  be,  to 
place  the  property  beyond  the  reach  of  other  credi- 
tors.^"*^ This  rule  may  be  illustrated  as  follows:  A 
surety  may  buy  property  of  his  principal  to  protect 
himself  or  his  suretyship,  although  the  purchase  may 
operate  to  hinder  and  delay  creditors  of  the  principal 
of  their  demands,  and,  although  the  surety  knew  that 
the  debtor  intended  the  sale  to  have  that  effect,  pro- 
vided he  did  not  participate  in  the  fraudulent  purpose 
of  the  debtor,^''^  A  chattel  mortgage  is  not  invali- 
dated by  the  mere  fact  that  ^he  creditor  knows  the 
debtor  to  be  in  failing  circumstances,  and  that  the  in- 
tended effect  of  taking  such  security  will  be  to  delay 
or  defeat  other  creditors  in  the  collection  of  their 
debts.^'^     In  this  case  it  was  said :  "When  two  or  more 

569  Holmes  V.  Braitlwood.  82  Mo.  610;  Shelly  v.  Boothe.  7.3  Mo.  74, 
39  Am.  Rep.  4Sl;  Brown  v.  Force,  7  B.  Mon.  3~u,  46  Am.  Dec.  519; 
Brown  v.  Smith,  7  B.  Mon.  361;  Antlerson  v.  "Warner,  5  111.  App. 
4l6. 

570  Lewy  v.  Fischel,  Go  Tex.  311;  Owens  v.  Clark,  7S  Tex.  547; 
Knower  v.  Central  Nat.  Bank,  124  N.  Y.  522.  21  Am.  St.  Rep.  700: 
Worland  v.  Kimberlin,  6  B.  Mon.  008.  44  Am.  Dec.  78-");  Schroeder 
V.  Mason,  25  Mo.  App.  190;  Ross  v,  Sedgwick,  69  Cal.  247. 

571  Albert  v.  Besel,  88  Mo.  1.50. 

572  Olmstead  v.  Mattison,  45  Mich.  617;  Chase  v.  Wallers.  28  la. 
460-469. 


637  PERSONAL  PROPERTY  SUIiJEL'T  TO  EXECUTION.        §  141 

bona  fide  creditors  arc  cng-a<;ed  in  a  race  for  priority, 
the  one  securing  it  cannot  have  his  riglit  defeated  and 
be  postponed  to  a  more  tardy  or  less  fortunate  one  by 
showing  the  fraudulent  motive,  and  knowledge  of  it 
by  the  creditor,  which  prompted  the  debtor  to  give 
such  priority.  Fraud,  in  its  legal  sense,  cannot,  with- 
out more,  be  predicated  upon  such  a  transaction."  A 
sale  and  conveyance  of  goods  by  a  husband  to  his  wife 
will  not  be  held  fraudulent  as  to  his  creditors,  although 
accompanied  by  many  badges  of  fraud  and  circum- 
stances of  suspicion  and  bad  faith  on  his  part,  when  the 
evidence  fails  to  implicate  his  wife,  or  to  charge  her 
with  notice  of  the  husband's  fraudulent  intent.  If  a 
creditor  purchases  property  from  his  debtor,  who  is 
insolvent,  and  who  the  creditor  knows  is  attempting  to 
dispose  of  his  property  to  defraud  his  creditors,  the 
purchasing  creditor  must  act  in  good  faith,  and  pay  or 
allow  his  debtor  adequate  prices  or  fair  value  for  the 
property  purchased.^'^  But  the  purchasing  creditor 
cannot  go  beyond  the  permissible  purpose  of  securing 
his  own  debt.  In  effecting  this  purpose  he  must  not  un- 
necessarily hinder  or  delay  other  creditors,  nor  impair 
their  rights,  by  placing  it  in  the  power  of  th?  debtor  to 
effectually  screen  from  execution  a  part  of  the  proceeds 
of  the  sale,  when  he  has  knowledge  of  facts  sufiticient 
to  create  a  reasonable  belief  of  such  intention  on  the 
part  of  the  debtor;  and  when  his  purchase  is  made 
partly  in  money  and  partly  in  an  antecedent  debt,  the 
same  rule  is  applicable  as  to  third  persons  purchasing 
for  a  new  consideration,  and  the  payment  of  the  past 
debt  is  only  a  circumstance  to  be  considered  in  deter- 
mining the  good  faith  of  the  vendee  in  the  transac- 

678  Lewis  V.  Hughs,  49  Kan.  23. 


§  141       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  638 

tion.^'*  When  a  creditor  purchases  a  stock  cf  goods 
of  a  failing  debtor,  and,  in  addition  to  the  settlement  of 
the  claim  due  to  him  from  the  debtor,  pays  the  latter  a 
part  of  the  purchase  price  of  the  goods  in  money,  with 
full  knowledge  of  his  insolvency,  and  also  of  his  intent 
to  hinder  and  delay  his  other  creditors  from  collect- 
ing claims  due  them  from  such  debtor,  the  sale  is 
void.^''"  If,  in  such  case,  the  creditor  has  no  actual 
knowledge  of  the  fraud,  or  the  fraudulent  design  of  his 
debtor,  but  the  surrounding  circumstances  are  such  as 
would  put  a  prudent  man  on  inquiry,  which,  if  prose- 
cuted diligently,  would  disclose  the  fraud,  he  cannot  be 
deemed  a  bona  fide  purchaser  for  value. ^'^^^ 

With  respect  to  the  second  question  the  decisions 
are  not  in  harmony.  Some  of  them  require  that  the 
vendee  should  have  had  at  the  time  of  the  transfer  to 
him  actual  notice  of  the  fraudulent  purpose  of  his 
vendor,  others  that  he  should  have  had,  at  least,  a  be- 
lief that  the  purpose  was  fraudulent,  but  the  great 
majority  apply  the  rules  usually  applicable  to  the 
question  of  notice,  which  is,  that  every  person  is 
chargeable  not  only  with  the  facts  of  which  he  has 
knowledge,  but  also  with  notice  of  such  other  facts  as 
would  have  been  disclosed  to  him  had  he  acted  in  a 
prudent  and  reasonable  manner.  "If  he  has  knowl- 
edge of  such  facts  as  would  lead  any  honest  man  using 
ordinary  caution  to  make  further  inquiries,  and  does 
not  make,  but  on  the  contrary  avoids  making  such  ob- 
vious inquiries,  he  must  be  taken  to  have  notice  of 
these  facts,  which,  if  he  had  used  such  ordinary  dili- 

874  Levy  V.  Williams,  79  Ala.  171;  Meyberg  v.  Jacobs,  40  Mo.  App. 
128;  Black  v.  Vaughan,  70  Tex.  47. 

675  Davis  V.  McCarthy,  40  Kan.  18;  Herman  v.  McKinney,  47  Fed. 
Rep.  7r)8. 

576  McDonald  v.  Gaunt,  30  Kan.  693. 


ii-.iO  rKRSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  141 

gencQ,  he  would  readily  have  ascertained."'  ''''  "Wliat- 
ever  will  put  a  purchaser  upon  inquiry  and  lead  to 
knowledge  is  notice,  lie  is  bound  to  make  in(iuiries 
where  there  is  anything  that  would  lead  a  prudent 
man  to  make  it,  and  he  is  therefore  presumed  to  have 
known  all  that  inquiry  would  have  revealed  to 
him."  '^^^ 

In  determining  whether  or  not  the  vendee  had  knowl- 
edge of  the  fraudulent  intent  of  the  vendor,  the  jury 
should  take  into  consideration  the  acts  and  declara- 
tions of  the  respective  parties,  and  all  circumstances 
preceding  or  attending  the  sale  or  conveyance,  and  if 
the  knowledge  of  the  purchaser  is  sufficient  to  put  him 
on  inquiry,  then  the  jury  has  the  right  to  infer  guilty 
knowledge  on  his  part  of  the  fraudulent  character  of 
the  transaction."''**  "In  cases  of  this  nature,  two 
facts  are  to  be  shown  in  order  to  establish  the  defense: 
1.  Fraud  on  the  part  of  the  vendor  of  the  property  in 
making  the  sale;  and  2.  Knowledge  of  such  fraud  on 
the  part  of  the  purchaser  or  vendee  at  the  time  of  pur- 
chasing, or  knowledge  of  such  other  facts  and  circum- 
stances by  the  vendee  as  ought  to  have  put  him  upon 
inquiry,  and  would  have  led  to  an  ascertainment  of  the 
trutli.  or  as  will  afford  reasonable  ground  for  the  infer- 
ence that  he  purposely  or  negligently  omitted  to  make 
those  inquiries  which  an  ordinarily  cautious  and  pru- 

B77  Converse  v.  Blnmrich.  14  IMich.  109,  90  Am.  Dec.  2.30. 

6T8  Gibson  v.  Winslow,  46  Pa.  St,  380,  84  Am.  Dec.  552;  Litch- 
field's Appeal.  28  Conn.  127,  73  Am.  Dec.  6G2;  Lumbard  v.  Abbey, 
73  111.  178;  IMoiTison  v.  Kelly,  22  111.  010,  74  Am.  Dec.  109;  Cliicairo 
R.  R.  Co.  V.  Kennedy,  70  111.  3G2;  Codfroy  v.  Miller.  SO  Cal.  320; 
Gollober  v.  Martin,  33  Kan.  252;  Kellogg  v.  Aherin,  48  la.  299;  At- 
wood  V.  Impson,  20  N.  .T.  Eq.  151;  David  v.  Bircbard,  53  Wis.  402; 
Biddinger  v.  Wiland,  G7  Md.  359;  Holcombe  v.  Ebrmanntraut,  4C. 
Minn.  397;  Hooser  v.  Hnnt.  65  Wis.  71. 

B7»  Greenwell  v.  Nash,  13  Nev.  287. 


§  141       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  64a 

dent  man  in  the  same  situation  would  have  made. 
Knowledge  by  the  vendee  of  the  fraudulent  intent,  or 
the  existence  within  his  knowledge  of  other  facts  and 
circumstances  naturally  and  justly  calculated  to 
awaken  sjispicion  of  it  in  the  mind  of  a  man  of  ordin- 
ary care  and  prudence,  thus  making  it  his  duty  to  pause 
and  inquire,  an(^  a  wrong  on  his  part  not  to  do  so,  be- 
fore consummating  the  purchase,  is  essential  in  order  to- 
charge  the  vendee  in  every  such  case  with  a  knowl- 
edge of  the  facts  so  calculated  to  arouse  suspicion  that 
the  vended  cannot  shut  his  eyes,  but  must  look  about 
him  and  inquire."  ^****  "It  is  not,  however,  necessary 
in  order  to  ascertain  fraud,  that  direct,  affirmative,  or 
positive  proof  of  fraud  shall  be  produced.  Concern- 
ing the  actions  of  men,  and  especially  when  prompted 
by  the  secret,  unexpressed,  hidden  motives  of  the 
actors,  demonstration  certainly  is  not  attainable,  nor  is- 
it  required.  As  is  the  case  with  resix'ct  to  knowledge 
on  other  matters,  fraud  may  be  inferred  from  the  facts; 
that  are  established.  It  is  enough  if  facts  be  estab- 
lished from  which  it  would  be  impossible  for  the  mind 
fairly  and  reasonably  to  conclude  anything  other  than 
that  there  must  have  been  fraud  in  the  transac- 
tion." ^****  ^  "A  person  who  deals  in  the  avails  of  a 
scheme  to  defraud  creditors,  to  keep  what  he  gets,  must 
not  only  pay  for  it,  but  he  must  be  innocent  of  any  pur- 
pose to  further  the  fraud,  even  to  protect  himself. 
Actual  notice  need  not  be  shown.  If  the  purchaser 
has  before  him,  at  the  time  of  his  purchase,  facts  and 
circumstances  from  which  a  fraudulent  intent,  either 
past  or  present,  on  the  part  of  the  vendor,  is  a  natural 
and  legal  inference,  or  such  facts  or  circumstances  of: 

5*-o  Hopkins  v.  Lanston,  .30  Wis.  :Md-?,Sl. 
B30a  Hickman  v.  Trout,  83  Ya.  478-490. 


641  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  141 

suspicion  as  would  naturally  prompt  a  prudent  mind 
to  further  inquiry  and  examination,  which,  if  pursued, 
would  lead  necessarily  to  a  discovery  of  the  corrupt- 
ing facts,  he  is  chargeable  with  notice.  A  person  who 
willfully  closes  his  eyes  to  avoid  seeing  what  he  be- 
lieves he  would  see  if  he  kept  them  open,  must  be  con- 
sidered to  have  seen  what  any  man  with  his  eyes  open 
would  have  seen."  ^^^ 

"It  is  contended  that,  to  render  a  sale  of  goods  void 
as  to  creditors  and  vendors,  it  must  appear  from  the 
evidence,  not  only  that  the  intent  to  defraud  his  cred- 
itors by  such  sale  existed  in  the  mind  of  the  vendor, 
but,  also,  that  such  intent  was  known  to  the  vendee, 
and  participated  in  by  him;  that  the  court  below  erred 
in  refusing  to  instruct  as  asked;  and  that  the  instruc- 
tion given  was  erroneous.  But  this  is  not  true.  To 
avoid  a  sale,  actual  notice  to  the  purchaser  of  the 
fraudulent  intent  of  the  vendor  is  not  necessary.  If 
the  facts  and  circumstances  within  his  knowledge  are 
sufficient  to  put  a  man  of  common  sagacity  upon  in- 
quiry, and,  with  the  use  of  reasonable  diligence,  to  lead 
him  to  the  discovery  of  the  fraudulent  purpose  of  the 
vendor,  and  he  neglects  to  make  the  inquiry,  he  will 
be  charged  with  notice  of  the  fraudulent  intent.  Xo 
purchaser  put  upon  inquiry  has  a  right  to  remain  will- 
fully ignorant  of  facts  within  his  reach.  It  is  not  suffi- 
cient for  his  protection  to  show  that  he  is  a  purchaser 
for  value;  he  must  also  be  an  innocent  purchaser.  By 
aiding  a  debtor  to  convert  his  property  into  money  or 
promissory  notes,  w^hich  can  be  easily  concealed  from 
his  creditors,  and  placed  beyond  his  reach,  witli  no- 
tice, actual  or  constructive,  that  he  is  doing  so  to  dc- 

681  DeWitt  V.  Van  Sickle,  29  N.  J.  Eq.  209-215. 
Vol.  I  —11 


§141       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  642 

fraud  his  creditors,  he  participates  in  the  fraud  of  the 
debtor  by  assisting  him  in  carrying  out  his  fraudu- 
lent purpose."  ^^^  When  a  mortgage  is  made  with 
intent  to  defraud  creditors,  and  the  circumstances  are 
such  as  should  awaken  the  suspicion  of  the  mortgagee, 
and  put  him  upon  inquiry  as  to  the  intent  with  which 
the  mortgage  is  made,  he  is  chargeable  with  notice  of 
that  intent.^**^  As  against  this  vast  array  of  author- 
ity, cases  from  two  states  only  are  found  which 
squarely  maintain  the  opposite  doctrine.  One  of  these 
states  is  Missouri,^^*  in  which  state  the  doctrine  an- 
nounced in  that  case  may  now  be  said  to  be  fairly  es- 
tablished, that,  in  order  to  avoid  a  conveyance  or  trans- 
fer of  property  as  fraudulent  against  the  creditors  of 
the  vendor,  the  vendee  must  have  actual  knowledge 
of  the  debtor's  fraudulent  intent,  and  must  participate 
therein,  and  that  constructive  notice,  or  a  knowledge 
of  facts  which  would  put  a  prudent  man  on  inquiry 
and  lead  to  a  discovery  of  the  fraud,  is  not  suflacient 
to  charge  him  with  notice  thereof.  In  a  prior  Missouri 
case,°**^  the  court  held  that  when  a  vendee  has  paid  a 
valuable  consideration,  and  it  is  sought  to  avoid  the 
sale,  because  he  has  notice  or  knowledge  of  a  fraudu- 
lent intent  on  the  part  of  his  vendor,  such  notice  is  not 
imputed  to  him  from  his  knowledge  of  facts  sufiftcient  to 
put  a  prudent  person  on  inquiry,  unless  the  jury  is  sat- 
isfied from  such  knowledge  that  he  had  actual  notice  of 
the  fraudulent  intent.  The  courts  of  New  York  main- 
tain the  same  doctrine,  namely, that,  to  render  a  sale  for 
a  valuable  consideration  invalid  as  to  creditors  of  the 
vendor,  the  purchaser  must  have  actual  knowledge  or 

682  Dyer  v.  Taylor,  50  Ark.  314-320. 

683  Moore  v.  Williamson,  44  N.  J.  Eq.  49G. 

684  state  V.  Mason,  112  Mo.  374,  34  Am.  St.  Rep.  .300. 

685  Van  Raalte  v.  Harrington,  101  Mo.  603,  20  Am.  St.  Rep.  626, 


€43  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  141 

belief  that  the  sale  is  being  made  to  kinder  or  defraud 
such  creditors;  that  no  duty  of  active  vigilance  is  cast 
upon  the  purchaser  which  requires  him  to  susjicct  or 
investigate  the  motives  of  the  seller,  and  fraud  can- 
not be  imputed  to  him  from  constructive  notice;  and 
that,  in  charging  the  vendee  with  actual  knowledge 
or  notice  of  the  fraudulent  intent  of  the  vendor,  it  may 
be  inferred  from  the  circumstances,  but  his  mere  neg- 
ligence or  want  of  diligence  in  not  inquiring  into  facts, 
known  to  liim  and  calculated  to  put  him  on  inquiry,  is 
not  sufficient  to  charge  him  with  notice  of  the  fraud. 
Hence,  the  question  to  be  submitted  to  the  jury  is, 
whether  or  not  the  vendee  did  in  fact  know  or  believe 
that  the  vendor  intended  to  defraud  his  creditors,  and 
not  whether  or  not  he  was  negligent  in  failing  to  dis- 
cover the  fraudulent  intent.^^^  The  doctrine  of  these 
cases  has  met  with  severe  condemnation  in  many  in- 
stances, and  the  court,  in  Hooser  v.  Hunt,  65  Wis.  TI- 
TO, expressly  refused  to  follow  them  or  approve  the  doc- 
trine announced.  On  the  other  hand,  however,  the  doc- 
trine that  when  the  title  of  the  vendee  is  attacked,  on 
the  ground  of  an  intent  on  the  part  of  the  vendor  to 
defraud  his  creditors  by  the  sale  or  conveyance,  it  is 
necessary  to  avoid  the  transfer  to  show  that  the  vendee 
had  actual  knowledge  'or  belief  that  the  vendor  had 
such  intent,  and  that,  although  this  belief  may  be  in- 
ferred from  the  circumstances,  it  is  not  enough  that 
the  vendee  had  reason  for  the  belief,  if  he  did  not  in 
fact  have  it,  and  it  is  shown  by  the  proof  to  have  ex- 
isted, has  been  adopted  in  Knower  v.  Cadden  etc.  Co., 
5T  Conn.  202,  and  in  Seavy  v.  Dearborn,  10  X.  H.  351. 
Under  the  rule  established  by  the  great  weight  of  au- 

688  Stearns  v.  Gasre,  79  N.  Y.  102;  Parker  v.  Conner,  98  N.  Y.  U.S. 
45  Am.  Rep.  178;  Bush  v.  Roberts,  111  N.  Y.  27S,  7  Am.  St.  Rep.  741. 


§  142       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  044 

tliority,  uamely,  that  when  the  buyer  has  knowledge 
of  facts  and  circumstances  such  as  would  put  an  or- 
dinarily prudent  man  on  inquiry,  and  which,  by  the 
exercise  of  reasonable  diligence  on  his  part,  would  lead 
to  knowledge  of  the  fraudulent  intent  of  the  vendor 
in  making  the  sale,  then  such  sale  is  fraudulent  and 
void  as  to  creditors  of  the  vendor,  the  vendee  must  be 
in  possession  of  facts  suflQcient  to  put  him  on  inquiry, 
and  need  not  heed  mere  suspicion  of  the  vendor's  in- 
tent, not  founded  on  any  known  facts,  for  a  mere  sus- 
picion on  the  part  of  the  purchaser  that  the  grantor 
intends  to  defraud  creditors  by  the  sale  is  not  suffi- 
cient to  put  the  purchaser  on  inquiry  or  vitiate  the 
sale.°«^ 

§  142.  Voluntary  Conveyances. — Transfers  which  are 
regarded  as  fraudulent  per  se,  or  prima  facie,  will  be 
considered  in  the  following  order:  1.  Absolute  convey- 
ances; 2.  Mortgages  and  trust  deeds,  purporting  to  be 
made  to  secure  existing  indebtedness;  3.  Assignments 
for  the  benefit  of  creditors.  Of  conveyances,  we  shall 
first  treat  of  those  wliioh  are  voluntary.  A  voluntary 
conveyance  has  been  described  as  one  made  without 
any  consideration  Avhatever.^****  The  fact  that  a  trans- 
fer was  made  upon  an  inadequate  consideration,  is 
doubtless  one  which  may,  and  ought* to  be,  consid- 
ered by  a  court  or  jury,  in  determining  whether  or  not 
the  transfer  was  made  with  intent  to  defraud  the  cred- 
itors of  the  grantor,  and  if,  in  connection  with  other 

5S7  Tntenr  v.  Chase,  GG  Miss.  47G,  14  Am.  St.  Rep.  .577;  Dodd  v. 
Gaines,  S2  Tex.  429;  Mercliants'  Nat.  Bank  v.  Northrup,  22  N.  .7. 
Eq.  58. 

588  Jackson  v.  Peck,  4  Wend.  300;  Shontz  v.  Brown,  27  Pa.  St. 
123;  Seward  v.  Jackson,  8  Cow.  406. 


645  PERSONAL  rKOl'EUTV  .SUBJECT  TO  EXIX'L'TION.        S   142 

oircumslancos,  it  satisfies  tbeni  of  such  fraudulent  in- 
tent, the  transfer  should  be  disregarded. ■'''^'•* 

The  expression  frequently  to  be  found  in  the  opin- 
ions of  the  courts  and  elsewhere,  that  a  voluntary  con- 
veyance is  one  entirely  without  consideration,  is,  in 
our  judgment,  inaccurate  and  misleading.  It  cannot 
be  that  a  nominal  consideration,  one  which  neither  the 
grantee  nor  the  grantor  could  have  regarded  as  other 
than  grossly  disproportionate  to  the  value  of  the 
[)r()perty,  is  sufficient  to  give  the  transfer  the  same  im- 
munity from  the  attacks  of  creditors  as  one  which  is 
a  fair  equivalent  for  the  property  transferred.  The  con- 
sideration must  be  substantial,  and,  though  it  is  more 
than  nominal,  it  may  well  be  so  inadecjuate  as  to  con- 
vince any  reasonable,  unprejudiced  person  that  the 
transfer  was  voluntary,  either  in  whole  or  in  part. 
Speaking  of  such  a  transfer,  the  court  of  appeals  of 
Maryland  very  justly  said:  "But  it  has  been  strongly 
urged  in  argument  that  this  fact  was  an  immaterial 
circumstance,  and  that  the  deed,  if  it  rests  upon  a 
moneyed  consideration,  must  be  supported,  even 
though  that  consideration  bears  no  adequate  relation 
to  the  real  value  of  the  property.  This  proposition, 
as  a  universal  rule,  is  not  correct,  so  far,  at  least,  as 
third  persons  are  concerned.  It  is  true  that  it  gives 
to  the  deed,  in  contemplation  of  law,  the  character  of 
a  bargain  and  sale,  and  subjects  it  to  all  the  rules  of 
interpretation,  and  the  like  which  govern  such  instru- 
ments. Nevertheless,  a  deed,  valid  in  all  respects  as 
between  the  parties,  may  be  assailed  in  chancery  by 
creditors,  solely  upon  the  ground  of  inadequacy  of  con- 
sideration; as,  for  instance,  where  land  is  sold  and 
<:'onveyed  at  private  sale,  as  this  was,  and  a  cousidera- 

B89  Wasbbnnd  v.  Washband,  27  Conn.  424. 


§  142       PERSONAL  PPwOPERTY  SUBJECT  TO  EXECUTION.  64G 

tion  in  money  is  received  therefor,  palpably  less  than 
its  real  value  or  what  it  would  bring  at  a  public  sale 
in  the  market.  In  such  circumstances  a  court  of  equity 
will  regard  the  transaction  as  evidence,  either  of  fraud 
or  a  design  on  the  part  of  the  grantor  to  make  a  gift 
to  the  grantee  of  the  difference  between  the  price  paid, 
and  the  actual  value  of  the  property;  and,  if  the  latter, 
the  deed,  to  the  extent  of  the  difference,  will  be  re- 
garded as  voluntary,  or  resting  upon  the  consideration 
of  natural  love  and  affection.  If  this  were  not  so,  fraud 
could  be  perpetrated  upon  creditors  with  impunity,  by 
converting  the  deeds,  based  in  fact  upon  the  considera- 
tion of  love  and  affection,  into  those  based  upon  a 
moneyed  consideration,  by  merely  agreeing  to  receive 
a  trivial  price  in  money  for  the  property  sold."  ^^** 

There  are  circumstances  in  which  transfers  will  not 
be  adjudged  voluntary,  though  the  consideration  can 
hardly  be  considered  of  any  value,  as  where  a  transfer 
is  in  payment  of  an  obligation,  which  could  not  have 
been  enforced,  and  which  the  grantor  might  have  omit- 
ted to  discharge,  had  he  thought  proper.  We  think  it 
is  a  mistaken  view  of  the  proper  relation  of  a  debtor 
to  his  creditors  to  leave  him  at  liberty,  as  self-inter- 
est or  caprice  may  suggest,  to  withdraw  his  property 
from  his  creditors,  having  enforceable  claims,  and  to  de^ 
vote  it  to  the  discharge  of  claims  which  are  supported 
merel}'  by  a  moral  obligation,  and  which  would  proba- 
bly never  have  been  discharged  had  not  approach- 
ing insolvency  warned  the  debtor  that  he  could  not 
hope  to  keep  the  property  as  his  own.  These  moral 
obligations  constitute  a  perpetual  menace  to  creditors 
having  claims  enforceable  by  action,  while  they  con- 
fer no  rights  upon  their  holders,  except  such  as  the 

BOO  Worthington  v.  Bullitt.  6  M<1.  198. 


C47     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.   §  U2 

caprice  or  self-interest  of  the  debtor  may  from  time 
to  time  concede.    He  can,  of  course,  make  any  tei^ms, 
or  come  to  any  understanding  be  chooses    with    the 
holders  of  them.    As  these  holders  have  no  means  of 
coercing  payment,  they  will  grant  him  any  concession 
he  may  suggest.     Lie  may  go  on  and  do  business  and 
obtain  credit,  because  his  assets  are  far  in  excess  of 
the  liabilities  which  can  be  enforced  against  him,  and, 
having  made  purchases  on  credit,  he  may  turn  the  j>ro- 
ceeds  of  the  purchases  over  to  the  payment  of  claims, 
from  which  he  had    long   been    practically    released, 
through  the  operation  of  the  statute  of  limitations,  or 
of  a  discharge  in  bankruptcy  or  insiolvency  proceed- 
ings.    The  theory  of  the  adjudications  upon  this  sub- 
ject is  that,  notwithstanding  the  operation  of  the  stat- 
ute, or  of   the   discharge,  the   debt  yet  remains,  and 
that  the  debtor  has  merely  obtained  the  privilege  of 
pleading  the  statute  or  discharge,  as    he    may    deem 
proper;  that  this  is  a  privilege  which  his  creditors  have 
no  right  and  no  power  to  compel  him  to  exercise;  and 
that  he  may,  therefore,  pay  the  debt,  either  in  money 
or  by  a  transfer  of  the  whole  or  any  part  of  his  prop- 
erty; and,  unless  the  transaction  is  otherwise  objec- 
tionable, they  have  no  cause  of  complaint.'*''*^ 

So  if  the  transfer  is  made  to  discharge  an  obligation, 
which  the  debtor  might  have  escaped  by  pleading  the 
statute  of  fraudt"!,  it  must  be  deemed  supported  by  a 
valuable  consideration.  ''The  casc^  seem  to  establish 
the  rule  that  a  conveyance  or  security,  given  for  a  debt 
or  in  fulfillment  of  a  contract,  which  could  have  been 

B81  Wilson  V.  I^nssoll,  IH  Mrl.  404.  17  Am.  Dor.  CATi:  Koon  v.  Kleck- 
ner.  42  Pa.  St.  .'29:  TJpdike  v.  Titus.  1.?  X.  .T.  Eq.  l."l:  Shonron  v. 
Hendersort.  ."^S  Tex.  24.':  Fronrh  v.  Motley,  G3  Me.  32G;  Biookville 
Nat  Bank  v.  Tnimble,  7G  Ind.  195. 


§  142       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  648 

recovered  or  enforced  in  au  action,  were  it  not  for  some 
legal  maxim  or  statutory  provision  which  prevents 
such  recovery  by  reason  of  the  contract  not  being  in 
the  form  prescribed  by  statute,  is  not  a  voluntary  con- 
versance or  security,  and,  therefore,  fraudulent  and 
void  as  to  creditors,  if  the  evidence  shows  that  there 
was  a  sufficient  consideration  for  tlie  debt  or  promise 
to  support  the  same,  were  it  not  for  the  statutory'  re- 
quirements/' ^''*' 

It  is,  perhaps,  not  correct  to  say  that  a  mere  obli- 
gation is  a  sufficiently  valuable  consideration  to  sup- 
port a  transfer,  and  to  relieve  it  from  the  imputation  of 
being  voluntary.  The  obligation  must  be  one  which  is 
legal  and  enforceable,  but  for  some  statutory  defense, 
which  the  debtor  may  elect  to  waive,  as  where,  to  avoid 
liability,  he  must  plead  or  otherwise  urge  the  statute 
of  frauds  or  of  limitations,  or  a  discharge  under  a  stat- 
ute relating  to  bankrupts  or  insolvents.  Therefore,  if 
a  debtor  has  been  released  by  a  composition  agree- 
ment, entered  intp  between  him  and  his  creditors, 
though  the  moral  obligation  to  pay  them  is  not  less  ob- 
vious than  if  such  release  resulted  from  proceeding  in 
bankruptcy  or  insolvency,  a  conveyance  of  which  a 
debt,  thus  released  by  his  creditors,  is  the  sole  consid- 
eration, is  voluntary.^^"  A  husband  or  father  may 
promise  to  give  to  his  wife  or  child  moneys  or  j^roperty 
in  payment  of  services  performed,  or  to  be  performed, 
to  which  the  promisor  is  entitled  without  making  any 
payment  or  compensation  therefor.     In  such  circum- 

592  First  Nat.  Bank  v.  Bertsoh.  .^2  Wis.  4.SS:  Goff  v.  Rogers,  71 
Tnfl.  4.59;  Lefferson  t.  Dallas.  20  Oh.  St.  OS;  Ci-osswoll  v.  MfCai?. 
11  Neb.  222;  Livermore  v.  Northrup,  44  N.  Y.  107:  Stowell  v.  ITaz- 
lett,  57  N.  Y.  637. 

R93  King  V.  Moore,  18  Pick.  376;  Nightingale  v.  Harris,  6  R.  I. 
321. 


049  I'KUSOXAL  TROPERTY  SUBJECT  TO  EXECUTION.        §  142 

♦stances,  whatever  lie  does,  thuu^;!!  in  rullilhucnt  of  his 
promise,  must,  as  against  his  creditors,  be  deemed 
j)urely  voluntary.'^**'* 

A  consideration,  valuable  in  the  eyes  of  the  law,  does 
not  necessarily  consist  of  mone}'  or  property,  and  there 
is  at  least  one  consideration,  which,  though  not  con- 
sisting of  money  or  property,  and,  whih*  in  many  in- 
stances of  great  value,  doubtless  sometimes  eiiabh-s 
the  grantor  to  ivserve  a  substantial  benefit  for  liimsi'lf 
at  the  expense  of  his  grantors.  AVe  refer  to  the  consid- 
eration of  marriage.  Marriage  has  always  been  re- 
garded as  a  valuable  consideration.  Therefore,  a  con- 
veyance made  by  one  person  to  another,  in  considera- 
tion that  the  latter  will  marry  him,  is  supported  by  an 
adequate  consideration,  and,  unless  fraudulent,  can- 
not be  a\ioided  by  the  creditors  of  the  grantor.  A\'hat- 
ever  obligations  either  of  the  parties  have  entered  into, 
by  an  antenuptial  marriage  settlement,  have  the  same 
rank  and  dignity  as  if  their  consideration  consisted  of 
money  or  other  property.  Hence,  nothing  that  either 
does,  either  before  or  after  the  marriage,  in  fulfillment 
or  satisfaction  of  this  obligation,  is  voluntary,  in  the 
judgment  of  the  law.  ''Marriage,  in  contemplation  of 
the  law,  is  not  only  a  valuable  consideration  to  sup- 
port such  a  settlement,  but  is  a  consideration  of  the 
highest  value,  and  from  motives  of  the  soundest  pol- 
icy is  uj)held  with  a  steady  resolution.  The  husband 
and  wife,  parties  to  such  contract,  are,  therefore, 
dt^emed,  in  the  highest  sense,  purchasers  for  a  valua- 
ble consideration;  and  so  that  it  is  bona  fide,  and  with- 

504Haniday  v.  :MilIor.  29  W.  Va.  424.  C>  Am.  Sr.  Rpp.  G53;  Steiu- 
t)ach  V.  Anderson,  40  Kan.  541.  20  Am.  St.  Ri'p.  121. 


§  142       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  650 

out  notice  of  fraud  brought  home  to  both  sides,  ir  be- 
comes unimpeachable  by  creditors."  ^^^ 

The  fact  that  an  intended  husband  makes  a  marriage 
settlement,  while  at  the  time  financially  embarrassed^ 
and  that  it  embraces  the  greater  portion  of  his  estate, 
certainly  does  not  render  it  voluntary,  nor  does  it  nec- 
essarily impress  upon  such  a  settlement  the  stigma  of 
actual  fraud.  If,  however,  the  wife  knew  of  her  in- 
tended husband's  financial  difficulties,  the  court  or 
jury  would  doubtless  be  left  to  determine,  from  all  the 
attendant  circumstances,  whether  the  settlement  was 
fraudulent  or  not.^^ 

It  is  not  essential  that  the  marriage  be  consummated 
to  entitle  an  intended  w^ife  to  the  benefit  of  a  marriage 
settlement,  or  to  projierty  conveyed  to  her  in  consid- 
eration of  her  promise  of  marriage.  The  consideration 
of  the  conveyance  may  consist  of  the  promise  of  one 
party  to  marry  the  other,  and  when  this  is  the  case, 
the  consideration  is  not  incapacitated  from  sustain- 
ing the  conveyance  by  the  fact  that  the  death  of  one 
of  the  pai-ties,  or  some  other  super^^ening  cause,  pre- 
vents the  fulfillment  of  the  promise.^^'' 

The  consideration  of  marriage  is  not  necessarily  con- 
fined to  the  parties  to  the  contract  of  marriage.     A 

595  Magniae  v.  Thompson.  7  Pet.  393;  Eppes  t.  Randolph,  2  Call. 
103;  Bunnell  v.  WithroTr.  29  Ind.  123;  Barrow  v.  Barrow,  2  Dick. 
r.04;  Pierce  v.  Harrinsrton,  ^8  Vt.  649;  Frnnk's  Appeal,  .o9  Pa.  St. 
190;  Spears  v.  Shroi)sbire,  11  La.  Ann.  5.59.  60  Am.  Dec.  206;  Sat- 
terthwaite  v.  Emley,  4  N.  .T.  Eq.  489.  43  Am.  Dec.  618;  note  to 
Merritt  v.  Scott,  50  Am.  Dec.  372;  Micliael  v.  Morey.  29  Md.  2.39.  m 
Am.  Dec.  106;  .Tenkins  v.  Clement,  1  LTarp.  Eq.  72.  14  Am.  Doc. 
698;  Prewitt  v.  Wilson.  103  U.  S.  22;  Gibson  v.  Bennett.  79  :Me.  302.. 

596  Herring  v.  Wickham.  29  Gratt.  628,  26  Am.  Rep.  40;  .Tones" 
Appeal,  62  Pn.  St.  324;  Campion  v.  Cotton,  17  Ves.  264;  Eraser  v. 
Thompson,  4  De  Gex  &  .T.  659. 

5»7  Smith  V.  Allen,  5  xillen,  454,  81  Am.  Dec.  758;  Connor  v. 
Stanley,  65  Cal.  183. 


esi     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.   §  1-12 

parent  may  settle  property  on  his  child  in  view  of  licr 
marriage,  and  the  settlement  will  be  presumed  to  have 
been  in  contemplation  of  a  marriage  which  follows 
soon  afterward.^"**  Even  if  the  gift  is  made  years  be- 
fore marriage,  and  during  the  infancy  of  a  daughter, 
and  when  no  particular  marriage  could  have  been  in 
contemplation,  and  she  subsequently  marries,  such  con- 
veyance, from  the  date  of  such  marriage,  ceases  to  be 
voluntary,  and  is  not  subject  to  successful  attacks  by 
creditors  or  purchasers,  whose  rights  have  their  in- 
ception after  the  marriage,*^**^  and  it  is  even  doubt- 
ful whether  the  conveyance  is  open  to  attack  by  those 
who  were  creditors  of  the  grantor  immediately  pre- 
ceding the  marriage.^^** 

If  a  marriage  settlement  is  made  after,  in  pursuance 
of  articles  entered  into  or  letters  written  before,  a 
marriage,  it  is  not  voluntary,  and  can  withstand  the 
attack  of  creditors;^"***  but  a  settlement  made  after 
marriage,  not  supported  by  any  valid  agreement,  pre- 
viously entered  into,  is  voluntary,  and  subject  to  the 
same  infirmity  as  any  other  voluntary  transfer  or 
agreement.""* 

A  consideration  which  will  relieve  a  deed  from  the 
charge  of  being  voluntary  must  be  legal.  It  cannot 
consist  of  a  contract  forbidden  by  law  or  public  pol- 
iQjfioz  ijpnce,  a  transfer  to  a  mistress  in  considera- 
tion either  of  past  or  future  intercourse,  is  volun- 
tary.«"^ 

B98  Hopkirk  v.  Randolph,  2  Brock.  132. 
B89  Wells  V.  Cole.  5  Graft.  64.''). 

600  Huston's    Adm.  v.  Cantrill,  11    Leii;b.  13G;  Foncs    v.  Roca,  9 
Gratt.  fiC58. 
«ooa  Kinnard  v.  Daniel.  13  B.  :Mon.  400. 
«oi  Oucon  V.  Sampson.  4  Fost.  &  F.  974. 

eo2Wopks  V.  Hill.  .38  N.  H.  100:  .lose  v.  Ilowott.  .^)n  :\ro.  249. 
803  Walt  V.  Day,  4  Denio,  439;  Potter  v.  Garcia,  58  Ala.  303.  29 


§  142       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  C52 

Though  no  moneyed  or  property  consideration  for  a 
transfer  exists,  it  is  not  voluntary  if  made  in  pursu- 
ance of  a  duty,  resting  on  the  grantor.  Thus,  if  he  is 
a  mere  trustee,  having  no  beneficial  interest  in  the 
property,  his  conveyance  to  his  cestui  que  trust  is  not 
voluntary.""^  Whatever  the  grantor  can  be  compelled 
to  do,  he  may  do,  without  any  other  compulsion  than 
such  as  results  from  the  knowledge  on  his  part  of  the 
existence  of  the  duty,  and  of  the  power  of  the  one  to 
whom  he  owes  it  to  resort  to  the  proper  tribunals  to 
<'nforce  its  performance.  Therefore,  if  one  who  holds 
lands  or  other  property  is  a  mere  trustee  of  the  legal 
title,  or  if  he  has  entered  into  some  agreement,  the 
])('rformance  of  which  can  be  specifically  enforced,  he 
need  not  wait  until  suit  has  been  brought  against  him 
before  he  conveys  to  the  cestui  que  trust,  or  to  the  per- 
son otherwise  entitled  to  a  conveyance;  and  if  he  con- 
veys without  compulsion,  his  creditors  are  not  injured, 
and  have  no  ground  upon  which  to  avoid  the  convey- 
ance,^"^ unless  the  grantee  has  by  some  act  or  omis- 
sion estopped  himself  from  insisting  upon  his  rights 
as  against  the  creditors  of  the  grantor.*'***^ 

There  are  cases  where  parties  are  entitled  to  speci- 
fic performance  of  gifts,  made  or  agreed  to  be  made  to 
them,  or  at  least  to  have  executed  the  muniments  of 
title,  constituting  the  final  evidence  of  sach  gifts. 
When  such  a  case  has  arisen,  any  conveyance  or  other 

Am.  Rop.  748;  Sherman  v.  Barrett,  1  McMull.  47;  Ilargroves  v. 
Meray,  2  Hill  Ch.  222. 

C04  Seoflors  v.  Alien.  98  111.  468. 

COS  Forbush  v.  Williams,  16  Tick.  42;  McConnell  v.  Martin,  52 
Ind.  434;  Bancroft  v.  Curtis,  108  Mass.  47;  .Taclvson  v.  Ham,  15 
.Tohns.  261;  Gudjrol  v.  Kitterman,  108  111.  50;  Caffal  v.  Hale,  49  la, 
5.3;  Norton  v.  Mallory,  63  N.  Y.  434;  Syracuse  C.  V.  Co.  v.  Wing, 
85  la.  44. 

606  City  Nat.  Bank  v.  Hamiltx)n,  34  N.  J.  Vai  158. 


653  TEKSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        g  142 

evidence  of  the  triinsniissiun  of  title  wliicL  tlie  ti.jiior 
executes  is  not  voluntary.  Thus,  if  a  gift  is  made  of 
lands,  and  the  donee  enters  into  possession,  makes  val- 
uable improvements,  and  does  such  acts  as  entitle  him 
to  the  specific  performance  of  the  gift,  the  donor  may 
then  make  the  conveyance  re(iuisite  to  vest  the  donee 
with  title,  and  those  who  were  not  creditors  of  the 
donor  when  the  gift  was  originally  made,  and  posses- 
sion taken,  cannot  complain."'""  If,  however,  the  gift 
rests  in  mere  promise  or  an  intent  to  give,  not  so  fully 
executed  that  the  donee  can  compel  its  consumma- 
tion, then  any  instrument  executed  or  act  done  to  com- 
plete the  gift  is  voluntary',  and  can  be  assailed  as  suc- 
cessfully as  if  the  intent  to  give  had  not  previously  ex- 
isted.«"'* 

A  transfer  may  be  made  by  one  person  to  another, 
without  any  consideration,  to  accomplish  some  tem- 
porary and  perhaps  unlawful  purpose,  and  with  the 
understanding,  expressed  or  implied,  that  the  grantee 
will,  at  some  future  time,  when  the  purpocfe  has  been 
effected,  reconvey  to  the  grantor;  and  then  the  ques- 
tion may  arise  whether,  if  the  g^'antor  does  so  recon- 
vey,  his  conveyance  is  voluntary,  and  subject  to  at- 
tack as  such.  In  an  early  case  in  New  York,  wherein 
it  appeared  that  a  transfer  had  been  made  for  the  pur- 
pose of  qualifying  the  donee  as  a  voter,  it  was  held 
that  his  creditors  had  no  right  to  object  to  a  retrans- 
fer,  where  he  had  never  taken  possession  of  the  prop- 
erty, nor  acquired  any  credit  based  upon  his  supposed 

607  Dozier  v.  Watson.  94  Mo.  S28,  4  Am.  St.  Rep.  ."SS;  Vnn  Bibber 
V.  Mather,  52  Tex.  406;  Kinealy  v.  Macklin.  S9  Mo.  433;  Dougherty 
V.  Harsel.  01  Mo.  161. 

608  Rueker  v.  Abell,  8  B.  Mon.  566.  48  Am.  Pec.  406:  Davis  v.  Mc- 
Kinney.  5  Ala.  710;  Hubbard  v.  Allen,  59  Ala.  273;  Worthlugton  v. 
Bullitt,  C  Md.  172. 


§  142       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  654 

ownership  of  it.**^^  The  better  rule,  however,  in  our 
judgment,  is,  that  if  the  transfer  is  good  between  the 
parties,  as,  for  example,  where  the  transfer  is  made 
for  the  purpose  of  defrauding  creditors,  so  that  the 
grantor  has  no  power  to  compel  a  reconveyance,  then, 
ii  the  grantee  does  reconvey,  his  act  is  voluntary,  and 
may  be  assailed  as  such  by  his  creditors.^^^  This  ques- 
tion has,  however,  been  recently  re-examined  by  the 
supreme  court  of  Texas,  and  a  conclusion  announced 
not  in  harmony  with  the  authorities  last  cited.  Real 
estate  was  conveyed  without  consideration,  and  for  the 
purpose  of  concealing  the  property  from  the  creditors 
of  the  grantor,  and  thereby  hindering  them  in  the  col- 
lection of  their  debt.  The  fraudulent  grantee  subse- 
quently, in  compliance  with  a  verbal  agreement  so  to 
do,  made  a  reconveyance  of  the  property  to  his  fraudu- 
lent grantor.  This  reconveyance  was  assailed  by  the 
creditors  of  such  fraudulent  grantee,  on  the  ground 
that,  as  he  could  not  be  compelled  to  make  the  con- 
veyance, it  must  be  regarded  as  voluntary,  and,  there- 
fore, a  fraud  upon  his  creditors.  The  court  stated  its 
conclusion  as  follows:  "We  conclude  that  the  correct 
rule,  and  that  which  is  supported  by  authority  and 
sound  reasoning  is,  that  when  the  fraudulent  grantee 
has,  in  compliance  with  his  verbal  agreement,  made 
a  reconveyance  of  the  property  to  the  fraudulent 
grantor,  the  moral  obligation  under  which  he  placed 
himself  to  make  this  reconveyance  is  a  valuable  and 

609  Jackson  v.  Ham,  15  Johns.  261. 

610  Susong  V.  Williams,  1  Heisk.  625;  Chapin  v.  Pease,  10  Conn. 
69,  25  Am.  Dec.  56;  Allison  v.  Hagan,  12  Nev.  38;  Maher  v.  Borard, 
14  Nev.  324. 


65J     PERSONAL  TROPERTY  SUBJECT  TO  EXECUTION.   §  \i-2 

.sufficient  consideration  to  support  the  deed  of  recon- 
veyance." **^* 

In  voluntary  conveyances,  the  intent  of  tlie  grantee 
is  immaterial,  because,  having  paid  no  consideration, 
he  has  no  equities,  paramount  to  either  existing  or 
subsequent  creditors  of  the  grantor.  Tlie  couveyaiice 
must,  therefore,  stand  or  fall  according  to  the  intent 
of  the  grantor,  actual  or  presumed.  The  grante<?  can- 
not support  it  by  proving  his  entire  innocence  and  his 
want  of  knowledge  of,  or  participation  in,  the  intent 
of  the  grantor.*'^^  As  a  voluntary  conveyance  must 
either  be  enforced  or  disregarded,  according  to  the  in- 
tent which  must  be  imputed  to  the  grantor  at  the  time 
it  was  executed,  it  is  of  the  utmost  importance  to  as- 
certain from  what  circumstances  the  fraudulent  in- 
tent should  or  should  not  be  presumed.  "The  law  pre- 
sumes that  every  man  intends  the  necessary  conse- 
quences of  his  act,  and  if  the  act  necessarily  delays, 
hinders,  or  defrauds  his  creditors,  then  the  law  pre- 
sumes that  it  is  done  with  fraudulent  intent."  ^^^    On 

eii  Bicoccbi  v.  Casey-Swasey  Co.,  91  Tex.  2.">0,  66  Am.  St.  Rop. 
875,  citing  Mullanphy  Sav.  Banli  v.  Lyle.  7  Lea,  431;  Swift  v. 
IToldridge,  10  Oil.  231,  36  Am.  Dec.  S5;  Towell  v.  Ivoy,  88  N.  C.  2."G: 
Clark  V.  Rucker,  7  B.  Mon.  583;  Stanton  v.  Shaw,  3  Baxt.  12;  Petty 
V.  Petty,  31  N.  J.  Eq.  14. 

612  Swartz  V.  Hazlott.  S  Cal.  118;  Wise  v.  Moore,  31  Ga.  14«?:  Cilli- 
land  V.  .Tones,  144  Tnd.  062,  55  Am.  St.  Rep.  210:  Laiialitou  v. 
Harden,  68  Me.  208;  Clark  v.  Chaniborlain.  95  Mass.  2.")7;  Hicks  v. 
Stone,  13  Minn.  434;  Gamhle  v.  Johnson,  9  Mo.  597;  Thompson  v. 
Dougherty,  12  S.  &  R.  448;  Woody  v.  Dean,  24  S.  C.  499;  Peck  v. 
Carmicbael,  9  Yerg.  325. 

613  Bump  on  Fraudulent  Conveyances,  p.  282,  citing  Potter  v. 
McDowell,  31  Mo.  62;  O'Connor  v.  Bernard,  2  Jones.  6.'i4;  Freeman 
V.  Pope,  L.  R.  5  Ch.  .538;  39  L.  J.  Ch.  6S0;  Norton  v.  Norton.  5  Oush. 
.524;  Smith  v.  Cherrill,  L.  R.  4  Eq.  390;  30  L.  J.  Ch.  738;  French  v. 
French,  6  De  Gex,  M.  &  G.  95;  25  L.  J.  Ch.  612;  Strong  v.  Strong. 
18  Beav.  408;  Freeman  v.  Burnham,  36  Conn.  469;  Corlett  v.  Rad- 
clifife,  14  Moore  P.  C.  C.  121;  Reese  River  M.  Co.  v.  Atwell,  L.  R. 


§  142       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  65& 

the  other  hand,  it  is  equally  well  settled  tliat  every 
man  is  entitled  to  dispose  of  his  own  property  as  he 
thinks  best,  provided  that  neither  the  intent  nor  the 
result  of  the  act  of  disposition  is  to  hinder,  delay,  or  de- 
fraud his  creditors.  A  man  free  from  debt  may  make 
a  valid  gift  of  his  property — one  which  subsequent 
creditors  cannot  successfully  assail  otherwise  than  by 
showing  that  the  gift  was  made  with  a  view  of  becom- 
ing indebted,  and  of  defrauding  them.*^*^  Nor  is  the- 
mere  fact  of  the  donor's  existing  indebtedness  conclu- 
sive against  the  gift.  Existing  creditors  cannot  avoid 
the  gift,  either  at  law  or  in  equity,  if,  at  the  time  it  was*, 
made,  their  claims  were  amply  secured;  *^*'^  nor  if,  when 
in  favor  of  a  member  of  donor's  family,  the  pecuniary 
circumstances  of  the  donor,  at  the  time  of  making  the 
gift,  were  such  that  the  withdrawal  of  the  property 
from  his  assets  did  not  hazard  the  rights  of  his  cred- 
itors, nor  materially  diminish  their  prospects  of  pay- 
ment.'^^^     Upon  this  last  point  the  authorities  are  not 

7  Eq.  347:  Van  Wyck  v.  Seward,  18  Wend.  375;  Thompson  v.  Web- 
ster, 7  Jur.,  N.  S.  531. 

614  Sexton  V.  Wheaton,  8  Wheat.  229;  Rnssel  v.  Hammond.  1  Atk. 
14;  Walker  v.  Burrows,  1  Atk.  94;  Townshend  v.  W'indham,  2  Ves. 
1;  Stephens  v.  Olive,  2  Brown  Ch.  91;  Lush  v.  Wilkinson.  5  Ves. 
884;  Glaister  v.  Hewer,  8  Ves.  199;  Battersbee  v.  Farrington,  I 
Swanst.  lOG;  Faringer  v.  Ramsay,  4  Md.  Ch.  33:  Bonny  v.  Griffitii. 
1  Hayes.  115;  Benton  v.  Jones,  8  Conn.  18G;  Sweeney  v.  Damrou, 
47  111.  450;  Winebrinner  v.  Weisiger.  3  T.  B.  Mon.  32;  Baker  v. 
Welch,  4  Mo.  484;  Charlton  v.  Gardner,  11  Leigh.  192;  Haskell 
V.  Bakewell,  10  B.  Mon.  206;  Phillips  v.  Wooster,  3G  N.  Y.  412,  3 
Abb.  Pr.,  N.  S.  475;  Roberts  v.  Gibson,  6  Har.  &  J.  116;  Creed  v. 
Lancaster  Bank,  1  Ohio  St.  1;  Thomson  v.  Dougherty.  12  Serg.  &  R. 
448;  :\Iartin  v.  01  liver,  9  Humph.  501,  49  Am.  Dec.  717;  Dick  v. 
Hamilton,  Deady.  322. 

B15  Manders  v.  Manders,  4  I.  R.  Eq.  434;  Pell  v.  Tredwell,  5  W^end. 
661;  Stephens  v.  Olive,  2  Brown  Ch.  90;  Johnston  v.  Zane,  11  Gratt. 
552;  Hester  v.  Wilkinson.  (!  Humph.  215;  44  Am.  Dec.  303. 

616  Kipp  V.  Hanna,  2  Bland,  26:  Bonny  v.  Griffith,  Hayes.  115: 
Babcock  V.  Eckler,  24  N.  Y.  623;  Taylor  v.  Eubauks,  3  A.  K.  Marsha 


657  PERSONAL  PROPEP.TY  SUBJECT  TO  EXECL'TIOX.        §  H2 

unanimous.  The  minority  contends  that  a  j^ift  is  voi.l 
as  to  existing  creditors,  irrespective  of  its  amount  and 
of  the  circumstances  and  intention  <jf  the  donor."*'' 
But  when  a  voluntary  transfer  is  made  by  an  insolvent 
debtor/****  or  by  a  debtor  in  such  financial  circum- 
stances that  the  gift  tends  materially  to  hinder,  delay, 
or  defraud  his  creditors,"*"  it  is  clearly  void  us  against 
them.  In  such  case,  the  inference  of  law  is  irresistible, 
and  cannot  be  overcome  by  any  evidence  in  regard  to 
the  debtor's  actual  intent."^** 

239;  Jacks  v.  Tunno.  3  Desaus.  1;  Bracket  v.  Walte,  4  Vt.  3S9; 
Smith  V.  Lowoll,  G  N.  II.  67;  Thonipsou  v.  Wobstor,  7  Jur.,  N.  S., 
531;  4  DreAv.  G2S;  Clements  v.  Eccles,  11  I.  R.  Eq.  229;  Dodd  v. 
McCraw,  3  Eng.  84.  4G  Am.  Dec.  301;  Williams  v.  Banks,  11  Md. 
198;  Salmon  v.  Bennett,  1  Conn.  525,  7  Am.  Dec.  237;  Abbe  v.  New- 
ton, 19  Conn.  20;  Posten  v.  Posten,  4  Whart.  27. 

617  Reade  v.  Livingston,  3  Johns.  Ch.  481,  8  Am.  Dec.  520;  Mooro 
V.  Spence,  6  Ala.  50G;  Foote  v.  Cobb,  18  Ala.  580;  O'Daniel  v.  Craw- 
ford, 4  Dpv.  197;  Kissam  v.  Edmondson,  1  Ired.  Eq.  ISO;  Bogard  v. 
Gardley,  4  Smodes  &  M.  302;  Choteau  v.  Jones,  11  III.  318,  50  Am. 
Dec.  460. 

«i8  Annin  v.  Annin,  24  N.  J.  Eq.  184;  Phelps  v.  Morrison,  24  N.  J. 
Eq.  195;  Casv/ell  v.  Hill,  47  N.  II.  407;  Morgan  v.  McLelland,  3  Dev. 
82;  Wellington  v.  Fuller,  38  Me.  61;  Reppy  v.  Reppy,  46  Mo.  571; 
Stickney  v.  Borman,  2  Pa.  St.  67;  Shontz  v.  Brown.  27  Pa.  St.  123; 
Raymond  v.  Cook,  31  Tex.  373;  Dulany  v.  Green,  4  Ilarr.  (Del.)  285; 
Waleott  V.  Almy,  6  McLean,  23;  Craig  v.  Gamble,  5  Fla.  430; 
Doughty  V.  King.  2  Stock.  396;  Barnard  v.  Ford,  L.  R.  4  Ch.  247; 
Burpee  v.  Bunn,  22  Cal.  194;  Sargent  v.  Chubbuck.  19  Iowa,  37; 
Harvey  v,  Steptoe,  17  Gratt.  289;  Catchings  v.  Maulove,  39  Miss. 
655;  Welcome  v.  Batchelder.  23  Me.  85. 

619  Holmes  V.  Penney,  3  Kay  &  J.  90;  .Tones  v.  Slubey.  5  liar.  Sc 
J.  372;  I'arkman  v.  Welch,  19  Pick.  231;  Potter  v.  McDowell,  31 
Mo.  62;  Wilson  v.  Buchanan,  7  Gratt.  334;  Worthington  v.  Bullitt, 
6  Md.  172;  Crossley  v.  Elworthy,  L.  R.  12  Eq.  158;  Townsend  v. 
Westacott,  2  Beav.  340;  Skarf  v.  Soulby,  1  Macn.  &  G.  364. 

620  Phelps  V.  Curts,  8  Chic.  L.  N.  208;  Churchill  v.  Wells,  7  Cold. 
370;  Wooten  v.  Steele,  109  Ala.  563,  55  Am.  St.  Rep.  947;  Seevers  v. 
Dodson,  53  N.  J.  Eq.  G.33,  51  Am.  St.  Rep.  641;  Rudy  v.  Austin,  50 
Ark.  73,  35  Am.  St.  Rep.  85;  Mason  v.  Vestal,  SS  Cal.  396,  22  Am.  St. 
Rep.  310. 

Vol.  I.— 12 


§  U-2       rERSOXAL  PROPERTY  SUBJECT  TO  EXECUTION,     658 

Considered  with  respect  to  existing  creditors,  tliere 
appears  to  be  no  doubt  that  the  law  presumes,  prima 
facie,  that  a  voluntary  conveyance  is  fraudulent  and 
void.*'-^  Many  of  the  authorities  go  further,  and  de- 
clare this  presumption  to  be  conclusive.*-^  The  duty 
of  a  husband  or  father  to  provide  for  his  wife  or  chil- 
dren is  one,  however,  which  is  scarcely  inferior  to  his 
duty  to  apply  his  property  to  the  satisfaction  of  his 
creditors.  There  are  many  cases  in  which  a  gift  or 
settlement  is  made  upon  a  child,  wife,  or  other  relative, 
'which  does  not  operate  as  a  fraud  upon  the  creditors 
of  the  donor,  though  he  is  at  the  time  somewhat  in- 
debted. Therefore,  "the  better  doctrine  seems  to  us 
to  be  that  there  is,  as  applicable  to  voluntary  eonvey- 
ances  made  on  a  meritorious  consideration,  as  of  Wood 
and  affection,  no  absolute  presumption  of  fraud  which 
entirely  disregards  the  intent  and  purpose  of  the  con- 
veyance, if  the  grantor  happened  to  be  indebted  at  the 

621  Nicholas  v.  Ward,  1  Head,  323,  73  Am.  Dec.  177;  Welcker  v. 
Price,  2  Lea,  6G7;  Clieatliam  v.  Hess,  2  Tenu.  Ch.  7G4;  Iluteliinson 
V.  Kelly,  1  Rob.  (Ya.)  123,  39  Am.  Dec.  2.j0;  Rudy  v.  Austin,  5G  Ark. 
73,  35  Am.  St.  Rep.  85;  Driggs  &  Co.'s  Bank  v.  Nor^-ood,  50  Ark. 
42,  7  Am.  St.  Rep.  78;  Weed  v.  Davis,  25  Ga.  684;  Goodman  v. 
Wineland,  61  Md.  449;  Filley  v.  Register,  4  Minn.  391,  77  Am.  Dec. 
522;  Cole  v.  Tyler,  05  N.  Y.  73;  Oliver  v.  Moore,  23  Oh.  St.  473; 
Jones  V.  Clifton,  101  U.  S.  225. 

622  Cook  V.  Johnson,  1  Beasl.  Ch.  51,  72  Am.  Dec.  381;  Belford  v. 
Crane,  16  K.  J.  Eq.  272,  84  Am.  Dec.  1.55;  Miller  v.  Thompson,  3 
Port.  196;  Spencer  v.  Godwin,  30  Ala.  355;  Crawford  v.  Kirksey. 
55  Ala.  282,  28  Am.  Rep.  704;  Lockhard  v.  Beckley,  10  W.  Va.  87; 
ITuggins  V.  Perrine,  30  Ala.  396,  68  Am.  Dec.  131;  Severs  v.  Dodson. 
53  N.  J.  Eq.  633,  51  Am.  St.  Rep.  641;  Bohannon  v.  Combs,  79  Mo. 
305;  Marmon  v.  Harwood.  124  111.  104,  7  Am.  St.  Rep.  345;  O'Daniol 
V.  Crawford,  4  Dev.  197;  Read  v.  Livingston,  3  Johns.  Ch.  481,  8 
Am.  Dec.  520;  Kissam  v.  Edmondson,  1  Ired.  Eq.  180;  Ruse  v. 
Bromberg,  88  Ala.  020;  Spuett  v.  Willows.  3  Do  G.,  J.  &  S.  293; 
Bogard  v.  Gardley,  4  S.  &  M.  302;  Chamley  v.  Dunsany,  2  Sehoales 
&  L.  714. 


CO'J     rEKSONAL  PROPERTY  SUBJECT  TU  EXK;  UTiON.   §  14'J 

time  it  was  made,  but  that  such  conveyance  under  such 
circumstances  affords  only  prima  facie  or  presumptive 
evidence  of  fraud,  which  may  be  rebutted  and  con- 
trolled." '''■'  To  rebut  the  presumption,  the  financial 
circumstances  of  the  grantor  at  the  time  of  the  j;]-ant 
may  be  shown,  and,  if  it  appears  that  he  was  then  abnn 
dantly  able  to  pay  all  liabilities  existing  against  him, 
that  the  property  donated  was  an  inconsiderable  por- 
tion of  his  estate,  and  that  after  the  donation  he  re- 
mained able  to  satisfy  all  his  creditors,  then,  unle;>s 
there  are  other  circumstances  indicating  an  intent  to 
defraud,  the  presumption  must  be  regarded  as  over- 
come.**^^  Subsequent  creditors  can  attack  a  voluntary 
conveyance  only  upon  the  ground  that  it  was  made 
with  a  fraudulent  intent."-^  "The  law  now  appean> 
to  be  well  settled  that  a  man  may,  for  the  sole  purpose 
of  protecting  his  family  against  the  casualties  and 
accidents  of  trade,  settle  his  property  for  their  benefit, 
and  that  such  settlement  will  be  upheld  against  his 
subsequent  creditors,  unless  it  shall  appear  that  the 
property  was  so  situated  that  the  community  could 
have  been  easily  misled  as  to  the  title  of  the  true  owner. 

623  Lerow  v.  Wilmarth,  9  Allen.  3SG;  Hoklon  v.  Burnliam,  6.3  N.  Y. 
74;  see  note  to  Jenkins  v.  Clement,  14  Am.  Dec.  TOH. 

oiiGridley  v.  Watson,  53  111.  103;  Pratt  v.  Curtis.  2  Low.  87: 
Stewart  v.  Rogers,  25  Iowa,  3^,  95  Am.  Dec.  794;  Winchester  t. 
Charter,  97  Mass.  140;  jNIiller  v.  Pearce,  6  Watts  &  S.  101;  French 
V.  Holmes,  07  Me.  180;  Kuoop  v.  Nelson,  102  Mo.  150. 

625  Inhabitants  of  Pelham  v.  Aklrieh,  8  Gray.  51.").  09  Am.  Dec. 
260;  Bangor  v.  Warren,  34  Me.  324.  56  Am.  Dec.  657;  Hester  v. 
Wilkinson,  0  Humph.  215,  44  Am.  Dec.  303;  Cosby  v.  Ross'  Adm'r. 
3  J.  J.  Marsh.  290,  20 Am.  Dec.  140;  Lancaster  v.  Dolan.  1  Rawle.  2;'!1. 
IS  Am.  Dec.  625;  Smith  v.  Vodges,  92  U.  S.  183;  Rudy  v.  Austin.  50 
Ark.  73,  35  Am.  St.  Rep.  85;  Marmon  v.  Ilarwood,  124  111.  104,  7 
Am.  St.  Rep.  345;  Brundage  v.  Cheneworth.  101  Iowa.  250.  63  Am. 
St.  Rep.  382;  Hagerman  v.  Buchanan.  45  N.  J.  Eq.  292.  14  Am.  St. 
Rep.  732;  Jackson  v.  Plyler,  38  S.  C.  496,  37  Am.  St.  Rep.  782. 


§  142       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  6G0 

The  very  object  of  such  settlement  by  a  man  engaged 
in  commerce  is  to  prefer  his  family  to  those  who  may 
thereafter  become  his  creditors,  and  it  may  be  safely 
admitted  that  the  design  was  to  protect  the  property 
against  the  debts  thus  contracted,  for  otherwise  the 
conveyance  would  be  simply  an  idle  ceremony.  The 
right  to  make  the  settlement  carries  with  it  the  right 
to  the  beneficiaries  to  hold  and  enjoy  the  property 
against  the  claims  of  the  donor,  or  against  those  w^ho 
may  assert  a  title  through  him.  The  conveyance,  when 
executed  according  to  the  forms  and  ceremonies  of  the 
law,  and  made  a  matter  of  record,  is  notice  to  the  world 
not  to  trust  the  donor  longer  upon  the  faith  of  the  prop- 
erty conveyed;  and,  while  it  may  have  the  effect  of  im- 
pairing his  credit,  it  cannot  be  regarded  as  a  fraud  upon 
those  who  have  ample  opportunity  to  learn  his  true 
condition."  ^^^  On  the  other  hand,  if  a  voluntary  con- 
veyance is  made  with  intent  to  defraud  subsequent 
creditors,  it  is  void  as  against  them.  "It  is  perfectly 
well  settled  that  if  there  be  any  design  of  fraud  or  collu- 
sion, or  any  intent  to  deceive  third  persons,  in  making 
a  voluntary  conveyance,  although  the  grantor  be  not 
then  indebted,  the  transfer  w^ill  be  voidable  by  subse- 
quent creditors;  ^^'^  and  the  design  to  defraud  may  be 
inferred  from  the  fact  that  the  grantor,  when  he  made 
the  deed,  was  upon  the  eve  of  entering  into  business  re- 
quiring more  means  than  he  then  possessed,  and  in  the 
course  of  which  he  must  necessarily  contract  debts."  *^^^ 

626  Bullitt  V.  Taylor,  34  Miss.  708.  69  Am.  Dec.  412. 

627  Winchester  v.  Charter.  12  Allen.  610;  Elliott  v.  Horn,  10  Ala. 
348,  44  Am.  Dec.  488;  Oilliland  v.  Jones,  144  Ind.  6G2,  55  Am.  St. 
Rep.  210. 

62S  Beofkman  v.  Montgomery.  1  McCarter,  106.  80  Am.  Dec.  22!): 
Ridjreway  v.  Underwood,  4  Wash.  C.  C.  137;  Ilaiiorman  v.  Bn- 
chanan,  45  N.  J.  Eq.  292,  14  Am.  St.  Rep.  732.     In  this  case  it  was. 


<J6l  i'EU.SOXAL  I'UOi'ERTY  SUBJECT  TO  EXECUTION.        §  142 

The  circumstances  under  which  a  voluntary  transfer 
made  with  innocent  intent  may  be  sustained,  though 
the  grantor  at  the  time  was  somewhat  indebted,  and  it 
subsequently  appears  that  the  transfer  tends  to  preju- 
dice a  pre-existing  creditor,  are  worthy  of  further  con- 
sideration. If  the  grantor  is  at  the  time  financially 
timbarrassed,  or  if  there  are  judgments  rendered  or  ac- 
tions pending  against  him,  or  suits  threatened,  his  vol- 
untary conveyance  is  unquestionably  fraudulent  and 
void  as  against  creditors."'"  To  render  a  voluntary 
transfer  fraudulent,  it  is  not  essential  that  the  grantor 
be  insolvent  at  the  time  of  making  it.  "If  a  debtor  is 
in  embarrassed  circumstances,  and  makes  a  voluntary 
conveyance,  and  is  afterward  unable  to  meet  his  debts 
owing  at  the  time  of  the  assignment,  in  the  ordinary 
cou:i;se  prescribed  by  law  for  their  collection,  or  is  re- 
duced to  that  condition  that  an  execution  against  him 
would  be  unavailing,  such  conveyance  is  void  as  to 
those  debts,  and  the  property  conveyed  is  subject  to 
their  payment."  *^^"  "It  is  sulTicient  to  show  that  the 
grantor  is  embarrassed  or  in  doubtful  circumstances, 
and  was  not  possessed  of  ample  means  outside  of  the 

«ai(l:  "Now,  it  is  true  that  the  fact  that  a  person  has  entered  into 
&  hazardous  business  or  en.saired  in  a  speculative  enterprise  at  or 
soon  after  the  execution  of  a  voluntary  conveyance  is  .strons;  evi- 
<lence  of  a  fraudulent  intent.  It  evinces  a  desire  to  reap  the  benefit 
for  himself,  if  successful,  and  escape  responsibility,  if  unlucky. 
Nevertheless,  each  case  must  stand  upon  its  own  footinpr,  and  no 
legal  rule  can  be  adopted  as  to  the  quantity  of  proof  or  tlie  partioi- 
lar  complexity  of  facts  which  will  annul  a  conveyance  tipon  this 
frround.  The  character  of  the  business,  the  decree  of  pecuniary 
hazard  incurred,  the  amount  of  property  remaining  in  the  grantor, 
the  value  of  the  property  conveyed,  the  acts  and  words  occurring 
ooincldently  with  the  transaction,  are  to  be  viewed  together  in 
solving  the  question  of  fraudulent  intent." 

C29  Bohannon  v.  Combs.  79  !Mo.  ."05. 

«3o  Potter  v.  McDowell,  31  Mo.  02. 


§  142       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  6G2 

particular  property  for  the  satisfaction  of  bis  tlien  ex- 
isting debts.  Wben  tbis  condition  of  affairs  is  proven 
to  exist,  tbe  conveyance  in  question — altboiigb  none 
but  tbe  purest  motives  may  bave  prompted  its  execu- 
tion— becomes  fraudulent  in  law,  and  is  open  to  attack, 
and  can  be  successfully  assailed  by  all  who  were  cred- 
itors at  tbe  time  of  tbe  execution  of  tbe  conveyance, 
and  whose  debts  remain  unliquidated  and  incapable  of 
collection  in  the  ordinary  course  of  proceedings."  ®** 

As  the  object  of  evidence  concerning  the  debtor's  in- 
ability at  tbe  date  of  the  transfer  is  to  enable  the  court 
or  jury  to  judge  what  his  intent  was  in  making  it,  and 
as  no  conclusive  presumption  of  fraud  arises  from  the 
fact  that  he  was  somewhat  indebted  at  tbe  time,  it  is 
evident  that  the  precise  amount  of  indebtedness  neces- 
sary to  avoid  such  transfer  cannot  be  stated,  and  that 
different  courts  or  juries  may  reach  diverse  conclusions 
from  the  same  facts.  If,  after  the  transfer,  the  grantor 
still  continued  to  be  the  owner  of  property  sufficient  to 
pay  bis  debts,  and  was  not  about  to  embark  in  some 
business  in  which  he  expected  to  contract  additional 
liabilities,  and  the  transfer  is  assailed  by  a  pre-existing 
creditor,  whose  debt  remains  unpaid,  it  must  be  left 
to  the  court  or  jury  to  determine,  as  a  question  of  fact, 
from  all  the  attendant  circumstances,  whether  the  in- 
tent of  the  grantor  was  fraudulent  or  not.^'"'^  The  gen- 
eral principle  which  ought  to  govern  courts  and  juries 
in  determining  this  question  has  been  thus  stated  by 
the  court  of  appeals  of  Kentucky:  Although  the  gran- 
tor "may  not  at  tbe  time  have  been  insolvent,  or  so 

631  Patten  V.  Casey.  57  Mo.  118. 

"■^s  Sanders  v.  "Wagonsellor,  19  Pa.  St.  248;  Lerow  v.  Wilmant.  f> 
Allen.  382:  Chambers  v.  Spence,  5  AVntts,  404;  Mntoer  v.  Hissim.  3 
Penr.  &  W.  IGO;  Posten  v.  Posteu,  4  Whart.  27;  Poniery  v.  Bailey, 
43  N.  H.  118. 


603  PERSONAL  rROrERTY  SUBJtXT  TO  EXIXUTION.       §  142 

much  involved  at  the  date  of  I  lie  deed  as  to  render  tho 
residue  of  his  estate  then  necessarily  insullicicnt  to  pay 
his  debts,  yet  if  he  was  involved  'to  a  material  extent,' 
by  which  we  are  to  understand  an  extent  which  might, 
in  view  of  ordinary  contingencies,  endanger  the  rights 
of  his  creditors,  then  the  deed  was  constructively 
fraudulent  as  to  subsequent  as  well  as  pre-existing 
debts;  for  in  such  a  case  a  fraudulent  intent  is  implied; 
and  the  deed  was  void  for  express  fraud,  if,  from  tlie  ex- 
tent of  the  grantor's  indebtedness,  compared  with  liis 
means  of  paying,  the  unreasonableness  of  the  convey- 
ance as  an  advancement  to  the  appellant,  considering 
the  claims  of  other  children,  and  other  attending  cir- 
cumstances, the  inference  is  justified  that  the  grantor 
made  the  conveyance  for  the  purpose  of  avoiding  the 
payment  of  his  liabilities."  "''** 

No  case  has  come  within  our  observation  in  which 
a  voluntary  transfer  has  been  sustained  against  a  pre- 
existing creditor  when  the  grantee  was  not  a  member 
of  the  grantor's  family,  and,  as  such,  the  natural  object 
of  his  bounty;  nor,  on  the  other  hand,  have  we  met  with 
any  case  declaring  that  such  a  transfer  could  not  be 
upheld  because  made  to  a  stranger.  Doubtless  the 
fact  that  the  donee  is  bound  to  the  donor  by  the  ties 
of  consanguinity,  or  even  affinity  is  worthy  of  great 
consideration,  because  it  is  njftural  and  commendable 
for  one  whose  financial  standing  enables  him  to  do  so 
to  provide  for,  and  secure  against  want  in  the  future, 
the  members  of  hi>^  family,  and  it  is  more  probable  that 
a  voluntary  transfer  to  them  may  have  been  made  with- 
out any  fraudulent  intention  than  a  like  transfer  to  a 
stranger.  If,  however,  a  voluntary  transfer  should  be 
made  to  one  not  related  to  the  grantor,  and  not  espe- 

«33  Lowry  v.  Fisber,  2  Bush.  TO,  92  Am.  Dec.  473. 


§  142       PKllSOXAL  PR0PP:RTY  subject  to  execution.  Go4 

cially  entitled  to  his  benefaction,  and,  from  the  gran- 
tors  financial  ability  at  the  time,  and  from  all  the  sur- 
rounding circumstances,  the  court  and  jury  should  be 
convinced  of  the  absence  of  all  fraudulent  intent,  we  see 
no  reason  for  denying  the  validity  of  the  trawsfer, 
though  the  grantor  may  have  been  indebted  at  the  time, 
provided  that  such  debts  bore  an  inconsiderable  ratio 
to  his  remaining  assets. 

The  right  of  a  husband  or  father  to  make  convers- 
ances to  his  wife  or  children,  notwithstanding  the  ex- 
istence of  indebtedness  against  him  at  the  time,  is  now 
well  established  in  a  majority  of  the  states.  Still,  the 
gifts  cannot  be  sustained  if  they  embrace  all  the  gran- 
tor's property,  or  even  if  he  is  financially  embarrassed, 
or  if  he  ought,  as  a  prudent,  practical  man,  to  foresee 
that  they  will  result  in  some  of  his  creditors  being  de- 
prived of  the  means  of  obtaining  i3aymeuts  of  their 
debts.  One  has  no  right  to  be  generous,  even  to  the 
members  of  his  family,  if  his  generosity  will  probably 
be  at  the  expense  or  detriment  of  his  creditors.*'"^* 

Though  it  is  doubtful  whether  the  property  which 
the  gi-antor  retains  may  not  be  sufficient  to  discharge 
all  his  liabilities,  a  voluntary  conveyance  to  his  wife 
and  children  must  be  pronounced  fraudulent,  if  the 
amount  of  his  indebtedness  is  large,  and  he  is  fearful 
that  his  property  may  not  be  sufficient  to  pay  it,  an<l 
especially  if  his  conceded  insolvency  follows  within  a 
short  time  after  the  execution  of  the  voluntary  trans- 
fer."^^  If,  on  the  other  hand,  the  property  to  wliicli 
the  grantor  retains  the  title,  after  making  a  voluntary 

634Marmon  v.  Harwoofl,  124  111.  104.  7  Am.  St.  Rep.  345;  Howe 
V.  Wassman,  10  Mo.  1G9,  49  Am.  Dec.  12G;  Lewis  v.  Lowe,  2  B. 
Mon.  34.5,  38  Am.  Dec.  161. 

fi35  Stewart  v.  Rogers,  25  Iowa,  395.  95  Am.  Dec.  794;  Driggs  v. 
Norwood,  50  Ark.  42,  7  Am.  St.  Rep.  78. 


€65  PERSONAL  PROPKUTY  SUBJECT  TO  EXECUTION.        §  143 

transfer,  is  at  the  time  unquestionably  sufficient  to  dis- 
charge all  his  liabilities,  and  the  transfer  is  no  more 
than  a  reasonable  gift  in  view  of  his  remaining  assets, 
his  ability  to  earn  money,  and  the  demands  which  are 
likely  to  be  made  upon  him,  then  the  transfer  sIkjuM 
be  sustained,  unless  it  appears  frum  other  circum- 
stances to  have  been  made  for  a  fraudulent  purpose/*^** 
Though  a  donor  is  considerably  indebted  at  the  date 
of  the  transfer,  if  he  continues  solvent  for  a  long  periijd 
of  time  afterward,  during  which  his  creditors  might; 
have  obtained  payment  of  his  debt  by  the  exercise  of  or- 
dinary diligence, they, after  lying  supinely  by  until  their 
debtor's  position  is  changed  from  one  of  comparative 
affluence  to  one  of  insolvency,  cannot  wrest  from  the 
voluntary  grantees  of  the  latter  property  w^hich  he  had 
transferred  to  them,  without,  at  the  time  of  the  trans- 
fer, depriving  himself  of  the  means  to  fully  satisfy  his 
creditors.**^'^ 

§  143.  A  Conveyance  to  the  Use  of  the  Grantor  is,  by 
the  statute  of  3  Henry  VII.,  c.  4,  void  as  against  cred- 
itors. The  purposes  for  which  such  a  deed  is  made  and 
the  actual  intention  of  the  parties  are  immaterial.  Nor 
does  it  make  any  difference  that  the  grantor  was  sol- 
vent or  entirely  free  from  debt  when  he  made  the  trans- 
fer. "In  all  the  refinements  of  uses  and  trusts,  in  the 
midst  of  multiplied    distinctions  between    legal  and 

63a  Gridlcy  v.  Watson,  53  111.  193;  Cole  v.  Tyler.  65  N.  Y.  78;  Arnett 
■V.  Wanett,  6  Ired.  41;  Winchester  v.  Charter.  07  Mas.s.  140;  T;iylor 
V.  Eastman.  92  N.  C.  GOl;  Miller  v.  Pearce.  6  W\atts  &  S.  101;  Wal.?h 
V.  Ketehnm,  84  ^lo.  427;  French  v.  Holmes,  G7  Mo.  ISG;  Wiles  v. 
Kichards,  Walker,  477,  12  Am.  Dec.  584;  Morgan  v.  Ilecker,  74  Cal. 
540. 

637  EiJileberjrer  v.  Kipler,  1  Hill  Eq.  113,  20  Am.  Dec.  192;  Lloyd 
V.  Fulton,  91  U.  S.  479. 


§  143   PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     60^ 

equitable  interests  wliicli  liave  abounded  in  the  pro- 
gress of  Anglican  jurisprudence,  this  principle  has 
never  been  doubted,  and  the  mockery  of  a  transfer  by  a 
debtor  of  his  property,  to  be  held  for  tlie  use  of  the 
debtor,  has  never  been  allowed  to  defeat  the  rights  or 
remedies  of  creditors."  ^'^'^ 

While  an  owner  of  property  may  give  it  to  an- 
other and  apply  conditions  to  the  gift  which  may  have 
the  effect  of  exempting  it  from  the  claims  of  the  latters- 
creditors,  no  one  will  be  permitted  to  make  a  convey- 
ance or  transfer  of  this  character  for  his  own  benefit. 
Hence,  if  a  married  woman  conveys  her  sei)arate  estate 
to  a  trustee,  to  be  held  in  trust,  with  authority  to  col- 
lect the  income  and  pay  it  to  her,  the  trust  deed  con- 
taining an  express  stipulation  that  such  income  shall 
be  paid  to  her  only,  and  shall  not  be  subject  to  the 
claims  of  her  creditors,  this  stipulation  is  not  enforce- 
able. On  the  contrary,  a  creditor  having  a  claim  en- 
forceable against  her  separate  estate  may  apply  to  a 
court  of  equity  and  there  obtain  an  order  that  the  trus- 
tee satisfy  such  claim  out  of  such  income  in  his- 
hands.*^^"** 

"It  has  been  considered  as  settled  long  since  that  if 
an  absolute  deed  is  given  with  intent  to  secure  a  debt, 
such  deed  would  be  void  as  it  respects  bona  fide  credit- 
ors, as  it  does  not  disclose  the  real  nature  of  the  trans- 
ess  Bump  on  Fraudulent  Conveyances,  230.  For  application  of 
the  law  against  conveyances  containing  reservations  for  tbe  benctit 
or  advantage  of  grantor,  see  Mackie  v.  Cairns,  Ilopk.  370;  Wilson 
V.  Cheshire,  1  McCord  Ch.  233;  Brown  v.  Donald.  1  Hill  Ch.  207; 
Jackson  v.  Parker,  9  Cow.  73;  Van  W'yck  v.  Seward.  18  Wend.  37ri; 
Lukins  v.  Aird.  G  Wall.  78;  Smith  v.  Smith,  11  N.  H.  4G0;  Burbank 
V.  Hammond,  3  Sum.  429;  Curtis  v.  Leavitt,  15  N.  Y.  9;  Sturdivant 
V.  Davis,  9  Ired.  3G5;  Ladd  v.  Wiggin,  35  N.  II.  421,  G9  Am.  Dec 
551. 

639  Brown  v,  Macgill,  87  Md.  IGl,  G7  Am.  St.  Rep.  334. 


667  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  143 

action.  It  places  the  parties  iu  a  false  position  as  it 
respects  the  public.  It  holds  out  the  grantee  as  the  real 
owner,  when  in  fact  the  grantor  is,  or  may  be,  the 
owner.  It  tends  to  lull  the  creditors  of  both  parties 
into  false  security,  and  to  conceal  from  them  the  real 
condition  of  their  debtors."  *'^*'  "Honesty  and  fair  (fil- 
ing require  that  the  truth  of  the  transaction  should  con- 
cur with  its  appearances;  that  the  whole  truth  should 
be  developed,  and  that  the  transaction  should  not  wear 
the  aspect  of  a  simple  sale  or  preference,  and  yet  iu 
fact  be  merely  a  disguise  or  color,  by  means  of  which 
the  debtor  is  enabled  to  enjoy  a  secret  interest  in  and 
control  over  the  goods  and  their  proceeds,  of  which 
other  creditors  are  not  informed  by  the  proceeding 
itself."  «^^ 

The  taking  of  an  absolute  transfer  of  propei-ty  as 
security  for  the  payment  of  indebtedness  or  for  the  per- 
formance of  some  other  obligations  is  a  very  usual 
transaction,  and,  in  many  of  the  states,  is  not  fraudu- 
lent nor  void  when  there  is  no  purpose  to  deceive  any 
one  or  to  create  a  secret  trust  iu  favor  of  the  trans- 
ferrer.*^^ Still,  the  rule  is  maintained  in  some  of  the 
states  as  laid  down  in  the  preceding  quotations.  Thus, 
in  Illinois  it  has  been  said,  in  a  case  where  an  absolute 
transfer  of  a  patent  right  was  assailed  as  fraudulent  be- 
cause made  merely  as  security:  "A  conveyance  of  prop- 
erty which  is  absolute  upon  its  face,  but  which  is  really 
intended  as  a  mortgage  or  security,  is  well  enough 
as  between  the  parties,  but  the  settUMl  doctrine  is,  that 

640  North  V.  BoUlon.  1.3  Conn.  370.  rt."  Am.  Doc.  S.3. 

6^1  :sicCnlloch  V.  Hntchinson.  7  Watts,  4.34.  32  Am.  Dec.  77S; 
Winkle.Y  v.  Hill.  9  N.  IT.  .31.  31  Am.  Doc.  21.^. 

642  >rcFarlano  v.  London.  09  Wis.  CJO.  (;7  Am.  St.  Rep.  883;  Roc'c 
V.  Collins,  99  Wis.  630,  G7  Am.  St.  Rop.  885. 


§  143       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  GGS 

such  a  transfer  of  property  is  fraudulent  and  void  as  to 
creditors.  Here,  the  assignments  of  the  patents  were 
absolute  in  form,  and  were  duly  recorded  in  the  patent 
office,  and  they  imported  unconditional  sales.  Hence, 
their  natural  and  necessary  effect  was  to  mislead,  de- 
ceive, and  defraud  creditors.  They  were,  in  substance 
and  in  fact,  the  creation  of  secret  trusts  for  the  benefit 
of  the  assignor,  and,  as  such,  frauds  upon  the  rights  of 
those  to  whom  he  was  justly  indebted.  Even  if  we 
should  assume  that  the  transfers  were  for  valuable  and 
ample  considerations,  and  were  not,  as  a  matter  of 
fact,  intended  to  accomplish  covinous  and  dishonest 
purposes,  yet,  as  there  were  trusts  whrch  were  not  dis- 
closed by  the  writings,  and  were  therefore  secret  trusts, 
it  follows  that  the  law  itself  regards  the  transactions 
as  lacking  the  elements  of  good  faith,  and  conclusively 
infers  fraud,  and  the  courts  are  bound  so  to  pro- 
nounce.*^^ There  is  no  question,  then,  but  that  the 
assignments  were  constructively  fraudulent."  ****  We 
understand,  however,  from  the  decision  as  a  whole, 
that  what  the  court  meant  by  declaring  the  assign- 
ments constructively  fraudulent  was,  that  they  would 
be  permitted  to  stand  only  for  the  amounts  bona  fide 
advanced  and  paid  therefor,  and  this  only  when  the 
conduct  of  the  assignee  had  not  been  marked  by  an  en- 
deavor to  conceal  the  real  nature  of  the  transaction  and 
to  maintain  a  secret  trust  in  favor  of  the  assignor. 
There  can  be  no  doubt  that  whenever  a  transfer  abso- 
lute in  form  is  made,  w^hile  the  transferrer  yet  retains 
some  interest  in  the  property,  and  the  purpose  of  the 

643  Lukins  v.  Aird,  6  Wall.  78;  INIetropolitan  Bank  v.  rJodfrey.  23 
Til.  .579;  Moore  v.  Wood.  10  111.  451;  Ilurd  v.  Asch(n-mau,  117  111. 
501;  Blennerhassett  v.  Sherman.  lO.^i  U.  S.  117. 

•♦*  Beidler  v.  Crane,  135  111.  92,  35  Am.  St.  Rep.  340. 


669    PERSONAL  PKOrERTY  SUBJECT  TO  EXECUTION.   §  U3 

parties  is  thereby  to  conceal  the  real  nature  of  the 
transaction,  and  thus  to  hinder  or  embarrass  creditors 
of  the  transferrer  or  to  prevent  them  from  discovering 
that  he  had  property  out  of  which  their  indebtedness, 
or  some  part  thereof,  might  be  satisfied,  then  the  trans- 
fer must  be  treated  as  void  as  against  such  creditors."*'* 
Nor  will  the  unkiMful  purpose  to  hinder  creditors  be 
made  valid  by  declaring  it.  Tlius,  a  transfer  may  be  in 
consideration  that  the  transferee  will  support  the 
transferrer,  or  w'ill  pay  to  him  the  income  of  the  prop- 
erty transferred,  or  some  part  thereof,  and  this  purpose 
may  be  declared  in  the  instrument  evidencing  the  trans- 
fer or  otherwise  made  public.  Here  the  object  is  to 
part  with  the  title  to  property  and  yet  retain  a  valuable 
interest  therein,  and  to  exempt  such  interest  from  the 
payment  of  the  transferrer's  creditors  existing  or  to 
exist.  In  Vermont,  it  has  been  held  that  when  a  trans- 
fer was  made  in  consideration  that  the  transferee 
would  support  the  transferrer  during  the  latter's  life, 
and  this  support  was  actually  furnished  and  was  equal 
in  value  to  the  property  received,  that  the  transfer 
could  not  afterward  be  successfully  assailed  by  a  cred- 
itor, though  hrs  debt  antedated  the  transfer,  the  court 
apparently  proceeding  on  the  principle  that  the  credi- 
tor, by  his  inaction  during  the  time  the  support  was  be- 
ing furnished,  had  estopped  himself  from  seeking  satis- 
faction out  of  the  property.*^®  Decisions  in  other  states 
proceed  on  substantially  the  same  principle,  that  is, 
they  seem  to  sustain  the  transfer  to  the  extent  of  the 
consideration  actually  furnished  or  paid  by  the  vendee, 

645  Robort  V.  Barnes.  127  :Mo.  40.5.  48  Am.  St.  Rop.  040;  Sabin  v. 
Golumbia  F.  Co..  2."  Or.  15.  42  Am.  St.  Rep.  756;  Barrett  v.  Nealon, 
119  Pa.  St.  171,  4  Am.  St.  Rep.  028. 

•*e  Kelsey  v.  Kelsey,  03  Vt.  41. 


§  H3   PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     670 

and  to  declare  that  all  in  excess  of  that  is  held  by  him 
subject  to  the  claims  of  the  transferrer's  creditors,  as 
"it  seems  to  be  well  settled  that,  where  the  considera- 
tion for  a  conveyance  is  an  agreement  for  the  future 
support  of  the  grantor,  the  transaction  is  fraudulent  in 
law  as  to  creditors,  to  the  extent  which  the  value  of  the 
property  is  in  excess  of  the  support  furnished.  The 
authorities  proceed  upon  the  theory  that  it  is  the  legal 
duty  of  a  debtor  to  pay  his  debts,  rather  than  to  pro- 
vide for  his  future  support,  and  that  existing  creditors 
may  avail  themselves  of  property  conveyed  for  future 
support  for  the  payment  of  their  claims,  when  the 
debtor  has  no  other  property  out  of  which  payment  can 
be  enforced.  And  where  the  parties  have  acted  in  good 
faith,  the  conveyance  may  be  sustained,  so  far  as  the 
consideration  paid  by  the  grantee,  without  notice,  is 
involved,  but  will  be  set  aside  as  to  any  value  in  the 
property  in  excess  of  the  amount  paid;  and  in  such  case 
the  grantee  is  chargeable  with  the  value  of  the  use  of 
the  property."  *^*''  Probably  these  decisions  go  further 
than  can  be  justified,  either  by  principle  or  authority, 
when  they  accord  transfers  of  this  character  a  qualified 
or  conditional  validity  as  against  the  creditors  of  the 
grantor.  If  the  property  conveyed  includes  all  his  es- 
tate, or  if  he  is  so  indebted  that  his  conveyance  will 
probably  withdraw  his  nssets  from  the  reach  of  his 
creditors  to  tlie  extent  of  leaving  his  estate  insufficient 
to  meet  his  liabilities,  the  law  must,  we  think,  pro- 
nounce the  transfer  void  as  against  all  his  pre-existing 
creditors,  independently  of  the  good  or  bad  faith  either 

C47  Harris  v.  Brink,  100  Iowa,  36,  62  Am.  St.  Rep.  578;  Farlin  v. 
Sook,  30  Kan.  101,  40  Am.  Rop.  100;  Walker  v.  Cady.  106  Mich.  21; 
Henry  v.  Hinman.  25  Minn.  109;  Loos  v.  Wilkinson,  110  N.  Y.  195; 
Faber  v.  Matz,  86  Wis.  370. 


tiTl  I'EUSONAL  niOPERTY  SUBJECT  TO  EXECUTION.        §  U4 

of  the  grantor  or  of  the  graDtee;  and  it  improperly 
encourages  transactions  of  this  character  t-o  hold  them 
valid  to  the  extent  of  the  expenditures  made  by  the 
transferee  in  performance  of  his  agreement.**^ 

§  144.  Conditional  Conveyances. — A  transfer  is  not 
bona  tide,  when  made  bj-  an  insolvent  debtor,  unless  it 
is  unconditional.  The  contract  of  sale  must  be  abso- 
lute. If  the  debtor  retains  the  right  to  revoke  the  con- 
tract, the  sale  is  fraudulent  per  se;  *^^"  and  a  like  result 
follows  a  stipulation  that  the  vendee  may,  before  the 
]>uyment  of  the  purchase  price,  return  the  property  and 
annul  the  sale.**^"  A  transfer,  of  which  part  of  the 
consideration  is  that  the  grantee  shall  thereafter  sup- 
port the  debtor  or  his  family,  is,  as  we  shall  see,^"**  * 
regarded  as  an  effort  to  preserve  a  beneficial  interest  in 
l>roperty,  and  keep  it  beyond  the  reach  of  the  grantor's 
creditors.  If  the  grantor,  immediately  after  making 
such  a  conveyance,  is  unable  to  pay  his  debts,  the  trans- 
fer is  void;  *^^^  but  it  is  otherwise  when,  notwithstand- 

648  Woodall  V.  Kelley,  85  Ala.  368.  7  Am.  St.  Rep.  57;  Hartin?  v. 
.Tockers,  130  HI.  627,  29  Am.  St.  Hep.  341;  Daridson  v.  Burke,  143 
111.  139,  36  Am.  St.  Rep.  367;  Sidensparker  v.  Sidensparker,  52  Me. 
4S1,  83  Am.  Dec.  527;  Graves  v.  BlondoU.  70  Me.  194;  Mackie  v. 
Cairns,  5  Cow.  547.  15  Am.  Dec.  477;  Johnston  v.  Harry,  2  P.  &  W. 
82,  21  Am.  Dec.  420;  see  post,  §  144. 

649  West  V.  Snodgrass,  17  Ala.  549;  Tar])ack  v.  Marbury,  2  Vern. 
510;  Bethel  v.  Stanhope,  Cro.  Eliz.  810:  Reacock  v.  Monk,  1  Ves. 
Sr.  127;  Anonymous,  Dyer,  295  a;  Jenkyu  v.  Vaughan,  3  Drew.  419. 

650  Shannon  v.  Commonwealth,  8  Serg.  &  R.  444;  West  v.  Snod- 
grass, 17  Ala.  549.  As  to  the  effect  of  an  agreement  that  debtor 
may  repurchase,  see  Towle  v.  Hoit,  14  N.  H.  61;  Albee  v.  Webster, 
10  N.  H.  302;  Newsom  v.  Roles.  1  Ired.  179;  Glenn  v.  Randall.  2 
Md.  Ch.  220;  Barr  v.  Hatch,  3  Ohio,  527. 

cr.oaAnte,  §  143. 

GUI  Church  V.  Chapin,  35  Vt.  223;  Bott  v.  Smith,  21  Beav.  511; 
Henderson  v.  Downing,  24  Miss.  106;  Sidensparker  v.  Sidensparker, 
52  Me.  481,  83  Am.  Dec.  527;  Gunn  v.  Butler,  18  Pick.  248;  Morrison 


§  145       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  072 

ing  the  conveyance,  the  grantor  retains  property  suffi- 
cient to  satisfy  his  creditors.^"^  And  it  is  said  that  the 
deed  may  always  be  supported  by  showing  that  tlie 
vendee  paid  the  full  value  of  the  property.  For,  in 
such  a  case,  it  appears  that  the  agreement  to  support 
the  grantor  is  not  made  in  consideration  of  property 
to  which  his  creditors  are  entitled."^"*  A  sale  made  by 
an  insolvent  on  a  long  credit  indicates  an  intent  to- 
withdraw  his  assets  from  the  reach  of  his  creditors;  and 
has  often  been  regarded  as  sufficient  evidence  of  fraud 
to  avoid  the  sale.**^* 

§  145.  Mortgages. — Mortgages,  under  which  the 
debtor  retains  possession  of  the  property,  with  the 
power  to  sell  the  same,  are  generally  treated  as  fraudu- 

V.  Morrison.  49  N.  H.  69;  Robinson  v.  Robards,  15  Mo.  459;  Geii;<T 
V.  Welsh,  1  Rawle,  349;  Rollins  v.  Mooers.  25  Me.  192;  Hunt  v.  Knox. 
34  Miss.  655;  Robinson  v.  Stewart,  10  N.  Y.  189;  Miner  v.  Warner^ 
2  Grant  Cas.  448;  Jones  v.  Spear.  21  Vt.  426;  Stolces  v.  Jones,  18 
Ala.  734;  Hawkins  v.  Moffitt,  10  B.  Mon.  81;  McLean  v.  Button. 
19  Barb.  450;  Graves  v.   Bloudell,   70  Me.   194-   "  v.  Jolinson, 

70  Me.  261;  Johnston  v.  Harvy.  2  Penr.  &  W^  -.  Am.  Dec.  426: 
McClurg  V.  Lecky,  3  Penr.  &  W' .  91. 

652  Barker  r.  Osborne,  71  Me.  71;  Usher  v.  Hazeltine,  5  Greenl. 
471,  17  Am.  Dec.  253;  Hapgood  v.  Fisher,  34  Me.  407,  56  Am.  Dec. 
663;  Drum  v.  Painter,  27  Pa.  St.  148;  Buchanan  v.  Clark,  28  Vt.  799; 
Mills  Y.  Mills,  3  Head,  705;  Johnston  v.  Zane,  11  Gratt.  552;  Eaton 
V.  Perry,  29  Mo.  96;  Barrow  v.  Bailey,  5  Fla.  9;  Mahoney  v.  Hun- 
ter, 30  Ind.  240;  Tibbals  v.  Jacobs,  31  Conn.  428;  Johnson  v.  John- 
son, 3  Met.  63. 

653  Slater  v.  Dudley,  18  Pick.  373;  Albee  v.  Webster,  16  N.  H.  362; 
see,  also,  Oriental  Bank  v.  Haskins,  3  Met.  332,  37  Am.  Dec.  140. 

654  Borland  v.  AValker,  7  Ala.  209,  where  the  notes  were  due  in 
from  seven  to  ten  years:  Pope  v.  Andrews,  1  Smodes  &  M.  Ch.  135, 
where  the  notes  were  due  in  nine,  ten,  and  eleven  years;  Kepner 
V.  Burkliju-t,  5  Pa.  St.  478,  where  the  notes  were  due  in  six  years; 
Grannis  v.  Smith,  3  Humph.  179,  where  the  notes  were  due  in  from. 
five  to  ten  years. 


673     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.   §  145 

lent  and  void  as  against  creditors.^^''  Such  an  instru- 
ment affords  no  security  to  the  mortgagee,  and,  if  valid, 
could  have  no  other  effect  than  to  give  the  mortgagee 
preference  over  other  creditors.  A  deed  of  trust  to 
creditors,  or  to  some  one  for  their  benefit,  in  which  the 
debtor  reserves  the  power  to  sell  the  property  until  de- 
fault is  made  in  the  payment  of  the  debts,  is  also 
vpid.**^"  But  in  some  of  the  states,  mortgages  on  stocks 
of  goods  in  stores,  containing  a  stipulation  that  the 
mortgagors  may  continue  their  business,  retailing  the 
goods  mortgaged,  and  replacing  them  with  other  goods 
of  like  value,  have  been  upheld."'''  Where  a  chattel 
mortgage,  by  its  terms,  permits  the  mortgagor  to  re- 
main in  possession  of  the  property,  and  to  sell  portions 
thereof  and  retain  the  proceeds  of  such  sales,  it  is  gen- 
erally conceded  to  be  fraudulent  and  void  as  a  matter 
of  law.*'''**     But  there  seems  to  be  no  objection  to  per- 

855  Collins  V.  Myers.  IG  Ohio,  547;  Harman  v.  Abbey,  7  Ohio  St. 
218;  Griswold  v.  Sheldon,  4  N.  Y.  5S1:  Armstrong  v.  Tiittle,  34  Mo. 
432;  King  v.  Kenan.  38  Ala.  r.3:  Constantine  v.  Twelves,  29  Ala. 
607;  Afhlington  v.  Etheredge,  12  Oratt.  4:\C,\  Bishop  v.  "Warner.  19 
Conn.  400;  Raulett  v.  Blodgett.  IT  X.  TT.  208;  Place  v.  Langworthy. 
13  Wis.  (129.  80  Am.  Dec.  758;  Freeman  v.  Rawson,  5  Ohio  St.  1; 
Gardner  v.  McEwen,  19  N.  Y.  123;  Barnet  v.  Fergus,  51  111.  352; 
Read  v.  Wilson,  22  111.  377,  74  Am.  Dec.  1.59. 

656BroolvS  V.  Wimer,  20  Mo.  .503;  Walter  v.  Wimer.  24  :\ro.  G3; 
Chophard  v.  Bayard,  4  Minn.  5.33. 

6r.7  Hickman  v.  Terrin,  6  Cold.  135;  .Tones  v.  Iliiggeford.  3  Met. 
515:  Briggs  v.  Parkman.  2  Met.  258.  37  Am.  Dec.  89;  Googins  v. 
Gilmore.  47  Me.  9,  74  Am.  Dec.  472;  Hughes  v.  Oory,  20  Iowa,  399; 
Gay  V.  Bidwell,  7  Mich.  519. 

658  Edgell  V.  Hart,  9  N.  Y.  213,  .59  Am.  Dec.  5.32;  Marstou  v.  Vultee, 
8  Bosw.  131;  12  Abb.  Pr.  144;  Mittnacht  v.  Kelly.  3  Keyes.  408;  3 
Abb.  App.  302;  5  Abb.  Pr.,  N.  S.,  445;  Russell  v.  Winne,  37  N.  Y. 
695;  4  Abb.  Pr.,  N.  S.,  388;  Simmons  v.  Jenkins.  7C,  111.  483;  Hayes 
V.  Westcott,  91  Ala.  143,  24  Am.  St.  Rep.  875;  First  N.  B.  v.  Caper- 
ton,  74  Miss.  857.  60  Am.  St.  Rep.  540;  Eckman  v.  Munnerlyn.  32 
Fla.  367,  37  Am.  St.  Rep.  109;  New  v.  Sailors,  114  lud.  407.  5  Am. 
Vol.  1—43 


§  \4o       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  674 

mittiug  the  mortgagor  to  remain  in  possession  and 
make  sales,  if  be  agrees  to  apply  the  proceeds  of  su,cli 
sales  to  the  satisfaction  of  the  mortgage  debt.^^^  In 
such  a  case,  the  mortgage  is  not  fraudulent  per  se;  the 
retention  of  possession  is  mereh'  evidence  of  fraud 
l)rima  facie.  If,  under  such  an  agreement,  the  mort- 
gagors make  sales,  it  is  as  the  agents  of  and  as  the  act 
of  the  mortgagees,  and  every  sale  satisfies  the  mortgage 
pro  tanto,  whether  the  money  ever  reaches  the  mort- 
gagees or  not/''*"  The  cases  sustaining  mortgages  of 
chattels,  notwithstanding  the  mortgagor  is,  by  the 
terms  of  the  mortgage  or  by  some  independent  agree- 
ment, permitted  to  remain  in  possession,  and  make 
sales  of  the  property  mortgaged,  are  limited  to  the 
classes  of  property,  such  as  merchandise,  kept  for  sale, 
and  where,  therefore,  the  action  of  the  mortgagor  in 
selling  it  is  in  the  usual  course  of  trade,  and  to  deny 
his  right  to  sell  would  be,  in  effect,  to  deprive  him  of 
the  use  of  the  property,  or  to  compel  him  to  discontinue 
his  usual  business."**^  As  to  whether  a  mortgage  may 
be  sustained  where  it  permits  a  sale  of  the  property  by 
the  mortgagor  without  expressly  stipulating  that  the 
proceeds  of  the  property  shall  be  paid  to  the  mortgagee, 
to  be  applied  upon  the  mortgage  debt,  the  authorities 
indicate  that  it  will  be  presumed,  until  the  contrary 
appears,  that  the  mortgagor  makes  sales  as  agent  of 

St.  Rep.  G32;  Ilangen  v.  Hackmeister,  114  N.  Y.  SGG,  11  Am.  St. 
Rep.  G91. 

659  Ford  V.  Williams.  1.3  N.  Y.  577,  07  Am.  Doc.  SB;  Currie 
V.  Bowman,  25  Or.  .364;  Roundy  v.  Converse,  71  Wis.  524.  5  Am.  St. 
Rep.  240;  Peabody  v.  Landon,  61  Vt.  318,  15  Am.  St.  Rep.  903;  Whit- 
son  V.  Griffis,  39  Kan.  211.  7  Am.  St.  Rep.  546;  Murray  v.  Nealy,  86 
Ala.  234,  IT  Am.  St.  Rop.  33;  Benliam  v.  Ham,  5  W^nsh.  128,  34  Am. 
St.  Rep.  8.51. 

060  Conklinsr  v.  Shelley.  28  N.  Y.  360.  84  Am.  Dec.  248. 

661  Rieliardson  v.  .Jones.  56  Kan.  .501.  54  Am.  St.  Rep.  594. 


C75  PERSONAL  rKOrj:KTY  8UBJKCT  TO  KXECUTION.        §  143 

the  mortgagee,  and  under  an  agreement  to  account  for 
the  proceeds  thereof  and  to  have  them  ai)plied  in  liqui- 
dation of  the  mortgage  indebtedness/"*- 

If  the  mortgagor  is,  by  agreement  of  (lie  parties,  per- 
mitted to  retain  any  portion  of  the  proceeds  of  sales 
made  by  him,  either  for  his  own  use,  or  for  the  support 
or  benefit  of  his  family,  or  any  member  thereof,  the 
mortgage  is  doubtless  fraudulent  and  void  as  a  matter 
of  law.""-*  The  fact  that  a  mortgage  embraced  much 
more  property  than  was  necessary  to  amply  secure  the 
mortgagee  has  been  held  to  be  a  circumstance  tending 
to  show  that  it  was  made  to  hinder,  delay,  or  defraud 
the  creditors  of  the  mortgagor/"'^  But,  on  the  other 
hand,  it  is  claimed  that  the  creditors  ai"e  not  prejudiced 
by  such  a  mortgage,  because  the}-  may  release  the  prop- 
erty by  paying  the  mortgage  debt,  or  may  sell  the  prop- 
erty subject  t<)  the  lien.""°  A  mortgage  may  be  made 
for  the  purpose  of  hindering,  delaying,  or  defrauding 
creditors,  in  which  case  it  is  void  as  against  them.*^*^*^ 
If  made  for  a  sum  in  excess  of  the  debt  intended  to  be 

secured,  it  is  fraudulent  and  void/'"'     But  if  the  intent 

/ 

662  New  V.  Sailors,  114  Ind.  407,  5  Am.  St.  Eep.  G32;  Roiindy  v. 
Converse,  71  Wis.  524,  5  Am.  St.  Rep.  240. 

663  Place  V.  Lansworthy.  13  .Wis.  629,  80  Am.  Dec.  758;  Blakeslee 
V.  Rossman.  43  Wis.  123;  Fisk  v.  Harshaw.  45  Wis.  COS. 

664  Bailey  v.  Burton,  8  Wend.  330;  Mitcholl  v.  Boal,  8  Yorg.  134, 
29  Am.  Dec.  108;  Bennett  v.  Union  Bank.  5  Humph.  012;  Hawkins 
V.  Allston,  4  Ired.  Eq.  137;  Adams  v.  Wheeler.  10  Pick.  199;  Ford 
V.  Williams,  13  N.  Y.  577,  G7  Am.  Dec.  83;  Davis  v.  Ransom.  18 
111.  396. 

665  Downs  V.  Kissam,  10  How.  102;  Bank  of  Georg^ia  v.  Higgin- 
hottom.  9  Pet.  48. 

660  Glass  V.  Butaven.  43  Neb.  334.  47  Am.  St.  Rep.  763;  Sabln  v. 
Columl>us  F.  Co.,  25  Or.  15.  42  Am.  St.  Rep.  756. 

667  Divver  v.  McLaughlin,  2  Wend.  600;  Bailey  v.  Burton.  8  Wend. 
339;  Tully  v.  Harloe.  35  Cal.  302,  95  Am.  Dec.  102;  Thompson  v. 
Richard.son  D.  Co.,  33  Neb.  714,  29  Am.  St.  Rep.  505,  and  note;  Kea 
v.  Eppstein,  87  Ga.  115. 


§  146       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  676 

is  to  secure  future  advances  to  be  ma(le,as  well  as  an  ex- 
isting debt,  the  mortgage  is  not  fraudulent,  though  the 
fact  that  it  is  partly  for  future  advances  is  not  stated 
therein.*^****  A  mortgage  to  secure  future  advances  or 
benefits  may,  however,  be  fraudulent  and  void,  as 
where  its  object  is  to  withdraAv  property  from  the  reach 
of  creditors  and  thereby  obtain  an  advantage  for  the 
mortgagor.  Hence,  it  was  held  that  if  an  insolvent 
debtor  transferred  or  conveyed  his  property  to  an  at- 
torney, or  some  one  for  the  attorney's  benefit,  to  secure 
payment  of  further  legal  services  to  be  rendered  in  liti- 
gation, in  which  the  debtor  might  thereafter  engage, 
that  such  mortgage  was  fraudulent  and  void  as  against 
the  mortgagor's  creditors.®*** 

§  146.  Assignments  for  Benefit  of  Creditors.— it 
seems  to  be  unanimously  conceded  that  an  assignment 
to  a  trustee  for  the  benefit  of  creditors,  whether  general 
or  partial,  is,  in  the  absence  of  statutory  prohibition, 
valid.'*'"'^  It  operates  to  withdraw  the  property  from 
the  reach  of  all  liens  and  processes  taking  effect  subse- 
quently to  the  execution  of  the  transfer.  In  other 
words,  although  such  a  transfer  necessarily  tends  to 
hinder  and  delay  creditors,  \)j  depriving  them  of  the 
right  to  take  the  debtor's  property  in  execution,  and 

688Tiilly  V.  Harloe,  35  Cal.  302,  95  Am.  Doc.  102. 

«69  Sholla barker  v.  Mottin.  47  Kan.  451,  27  Am.  St.  Rep.  306;  Grain 
V.  Gould,  40  111.  204:  Nkhol.';  v.  McEwen.  17  N.  Y.  22. 

670  Brashear  v.  West,  7  Tot.  609;  Kettlowell  v.  Stewart,  8  Gill, 
473;  Phippon  v.  Durham.  8  Gratt.  404;  De  Forost  v.  Bacon,  2  Conn. 
633;  Niolon  v.  Douglass,  2  Hill  Cli.  443.  .10  Am.  Doc.  308;  Moore  v. 
Collinsrs.  3  Dev.  126;  Pearson  v.  Rockhill,  4  P..  ^Nlon.  290;  Ilindman 
V.  Dill,  11  Ala.  689;  Hall  t.  Denison.  17  Vt.  311;  Niffhtln.salo  v. 
Harris.  6  R.  I.  328;  Dana  r.  Bank  of  Uuitod  Stntos.  5  Watts  &  S. 
224:  Do  Ruytor  v.  St.  Peter's  Chureli.  3  N.  Y.  2.38:  T.ondnn  v.  Parsley. 
7  Jones,  319.     An  assignment  of  all  the  assi,iiuor's  property,  for  the 


677  i'i:HSOXAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  146 

apply  its  proceeds  to  the  payment  of  their  debts,  yet,  as 
the  creditor  had  the  right  to  directly  turn  over  his  pr(jp- 
erty  to  his  creditors,  in  satisfaction  of  their  demands, 
he  is  allowed  to  accomplish  the  same  result  through 
the  intervention  of  a  trustee.  To  deny  the  right  to 
hinder  creditors,  in  a  certain  sense,  would  be  to  deny 
the  right  to  make  an  assignment  for  the  benefit  of 
creditors,  for  such  assignment,  if  given  any  operation, 
must  necessarily  prevent  some  of  the  creditors  from 
reaching  under  execution  or  attachment  property 
which  they  could  have  reached  but  for  such  assign- 
ment. And  the  assignor  may  have  foreseen  and  in- 
tended this  result.  He  may  have  desired  to  prevent 
the  sacrifice  of  his  assets,  which  must  inevitably  attend 
their  immediate  seizure  and  sale  under  execution.  To 
this  extent  he  has  the  right  to  hinder  his  creditors,  and 
the  assignment  is  not  rendered  void  thereby,  provided 
the  hindrance  is  only  such  as  results  from  turning  over 
the  property  in  good  faith,  to  be  applied  to  the  satis- 
equal  benefit  of  his  creditors,  is  unquestionably  valid,  and  if  exe- 
cuted more  than  six  months  before  proceediuss  in  bankruptcy  are 
instituted  against  the  assignor,  it  cannot  be  assailed  by  the  assignee 
in  bankruptcy,  nor  to  any  extent  impaired  by  proceedings  under 
the  bankrupt  act.  Mayer  v.  Hellman,  S  Chic.  L.  N.  177.  Such  an 
assignment  is  not  fraudulent  against  creditors,  nor  does  it  give  any 
creditor  a  preference  over  another.  It  does  not  in  any  respect  ac- 
■complish  purposes  in  hostility  to  those  which  the  bankrupt  act  is 
designed  to  promote.  It  will,  in  all  probability,  be  permitted  to 
stand,  though  made  within  less  than  six  months  prior  to  the  com- 
mencement of  proceedings  in  bankruptcy.  Sedgwick  v.  Place.  1 
Nat.  Bank.  Reg.  204;  Langley  v.  Perry,  2  Nat.  Bank.  Reg.  .59G:  In 
re  Kintzing,  .3  Nat.  Bank.  Reg.  217;  Farrin  v.  Crawford,  2  Nat. 
Bank.  Reg.  G02;  In  re  Wells.  1  Nat.  Bank.  Reg.  171;  In  re  Marter, 
12  Nat.  Bank.  Reg.  185.  Contra:  Globe  Ins.  Co.  v.  Cleveland  Ins. 
Co..  8  Chic.  L.  N.  2,-)8;  13  Alb.  L.  J.  305;  In  re  Burt.  1  Dill.  4?,9:  In 
re  Goldschmidt.  3  Nat.  Bank.  Reg.  165;  3  Ben.  ."70:  In  ve  Langley. 
1  Nat.  Bank.  Reg.  5~^9\  In  re  Smith.  .'^  Nat.  Bank.  Reg.  377;  4  Ben. 
1;  Spicer  v.  Ward,  3  Nat.   Bank. ,  Reg.  512. 


§  14tJ       TEllSONAL  rROPERTY  SUBJECT  TO  EXECUTION.  C7S 

faction  of  bis  debts.**''-'^  If,  however,  the  bindcring  of 
creditors  was  tbe  object  rather  than  the  incident  of  the 
assignment;  if  the  assignment  was  resorted  to  as  a 
mere  device  to  gain  time  or  to  coerce  the  creditors,  or 
some  of  them,  into  malcing  some  settlement  of  their 
claims,  to  which  tbe  assignor  was  not  legally  entitled — • 
it  is  doubtless  void.^''^ 

In  the  absence  of  any  statutory  inhibition,  a  debtor 
may  prefer  any  one  or  more  of  his  creditors,  either  by 
making  payment  of  his  liabilities  to  them  or  by  turn- 
ing over  property  to  them  to  be  held  as  security,  or  to 
be  applied  at  once  at  an  agreed  value,  or  by  means  of 
a  sale,  to  the  extinction  of  the  debt.  In  many  of  the 
states,  statutes  have  been  enacted  forbidding  prefer- 
ences in  assignments  for  the  benefit  of  creditors;  but, 
in  the  absence  of  such  statutes,  the  preferring  of  any 
creditor  or  class  of  creditors,  if  free  from  any  fraudu- 
lent intent,  does  not  render  the  assignment  fraudulent 
nor  void/*'^^     The  fact  that  some  of  the  creditors  are 

671  Baldwin  v.  Peet.  22  Tex.  708,  75  Am.  Dec.  806;  Hempstead  v. 
Johnston,  18  Ark.  123,  65  Am.  Dec.  458;  Hoffman  v.  Mackall,  5 
Ohio  St.  124.  64  Am.  Dec.  6.37;  Houston  E.  E.  v.  "Winter,  44  Tex.  609; 
Bailey  v.  Mills.  27  Tex.  437;  Pike  v.  Bacon,  21  Me.  280,  38  Am. 
Dec.  2.^)9:  Hazell  v.  Tipton  Bank,  95  Mo.  60,  6  Am.  St.  Ptep.  22;  Ar- 
nold V.  nairerman.  45  N.  .T.  Eq.  186,  14  Am.  St.  "Rep.  712. 

672  Knisht  v.  Packer.  1  Beasl.  Ch.  214,  72  Am.  Dec.  388;  Kimball 
V.  Thompson,  4  Cush.  441,  50  Am.  Dec.  799. 

6T3  Note  to  Crawford  v.  Taylor,  26  Am.  Dec.  584;  Sommerville  v. 
Horton.  4  Yerg.  541,  26  Am.  Dec.  242;  Buffum  v.  Green,  5  N.  H.  71. 
20  Am.  Dec.  562;  "Wilkes  v.  Ferris,  5  Johns.  335,  4  Am.  Dec.  364; 
Mackie  v.  Cairns,  5  Cow.  547,  15  Am.  Dec.  477;  Murray  v.  Judson, 
9  N.  Y.  73,  .59  Am.  Dec.  516;  Kuykendall  v.  McDonald,  15  Mo.  416, 
57  Am.  Dec.  212:  Arthur  v.  C.  &  R.  Bank,  9  Smedes  &  M.  394.  48 
Am.  Dec.  719;  Skipworth  v.  Cunninirhani,  8  Leiiili,  271.  31  Am. 
Dec.  642;  Grover  v.  Wakeman,  11  Wend.  187,  25  Am.  Dec.  624; 
Hempstead  v.  Johnson,  18  Ark.  123,  65  Am.  Dec.  4.58;  Nye  v.  "Van 
Husan,  6  Mich.  329,  74  Am.  Dec.  690;  Bank  of  Little  Rock  v.  Frank, 
C3  Ark.  16,  58  Am.  St.  Rep.  65;  Turnipseed  v,  Schaefor,  76  Ga.  109, 


679  rEU.SONAL  I'llOl'KllTY  .S'JliJlXT  TO  EXECUTION.        £   11  ; 

preferred  to  others  will  doubtless  cause  an  assigniueut 
to  be  viewed  with  suspicion;  and  may,  when  eonibincd 
with  other  suspicious  circumstances,  produce  the  con- 
viction that  it  was  intended  to  defraud  the  other  cred- 
itors. Of  course,  if  any  actual  design  to  defraud  taints 
the  assignment,  it  is  void.  There  are  several  things 
which,  when  connected  with  nn  assignment,  are  well- 
establislicd  ba«lg('s  of  fi"ni(l,aud  some  of  which  rendci- 
the  assignment  fi-audulent  p(^r  se.  The  most  prominent 
of  these  will  now  be  mentioned.  An  assignment  will 
not  be  allowed  to  withdraw  property  from  the  reach  of 
the  creditors,  that  it  may,  to  any  extent,  be  secured  for 
the  benefit  of  the  assignor.  He  must  part  with  all  in- 
terest in  the  property,  except  his  right  to  such  surplus 
as  may  remain  after  satisfying  the  demands  of  his 
creditors.  Uence,  when  it  appears  that  the  debtor  has 
reserved  some  portion  of  the  prox^ert}',  or  some  interest 
therein,  for  his  own  benefit;  or  that  he  stipulates  for 
some  benefit  or  advantage  for  himself  or  for  his  family, 
to  be  reserved  out  of  the  proceeds — it  is  evident  that 
he  thereby  seeks  to  withdraw  something  of  value  from 
the  reach  of  his  creditors,  and  the  assignment  is  fraudu- 
lent per  se."''*     Nor  is  it  necessary  that  this  reserva- 

2  Am.  St.  Itcp.  17;  I'litton  v.  Leftwicb.  SG  Va.  421.  19  Am.  St.  Rep. 
002;  Hage  v.  Campbell,  7S  Wis.  572,  23  Am.  St.  Kep.  422;  Worthed 
V.  Griffiu,  59  Ark.  5G2.  43  Am.  St.  Rep.  50;  Vaiidorpoel  v.  CJonn.m, 
140  N.  Y.  508,  37  Am.  St.  Rep.  001;  Kalmiis  v.  liallin,  52  N.  J.  Eq. 
290,  40  Am.  St.  Rep.  520;  Cutter  v.  I'ollook,  4  X.  1).  205,  50  Am.  St. 
Kep.  644;  contra:  Malcolm  v.  Hall,  9  Gill.  177,  52  Am.  Dec.  688; 
Denny  v.  Dana,  2  Cu.sh.  100,  48  Am.  Dec.  055;  Johnson  v.  McGrew, 
11  Iowa,  151.  77  Am.  Dec.  137. 

674  Montgomery  v.  Goodbar,  69  Miss.  333;  Marks  v.  Bradley,  69 
Miss.  1;  Claflin  v.  Iseman,  23  S.  C.  410;  Cliafee  v.  Blatchford.  6 
Mackey,  459;  Pike  v.  Bacon,  21  Me.  280,  ,38  Am.  Dec.  2.59;  Niolon 
V.  Douglas,  2  Hill  Ch.  443,  30  Am.  Dec.  308;  Beck  v.  Burdett,  1 
Paige,  305.  19  Am.  Dec.  4.36;  Green  v.  Trammel.  3  Md.  11:  McAl- 
lister V.  Marshall,  6  Binn.  338,  6  Am.  Dec.  458;  Harris  v.  Sumner, 


§  146       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  C80 

tion  appear  on  the  face  of  the  assignment.  As  the  in- 
tent to  reserve  some  benefit  to  the  assignor  is  very  often 
present,  many  devices  have  been  resortecl  to  for  the 
jnirpose  of  accomj)lishing  it.  But  in  whatever  guise 
it  may  be  concealed,  it  will,  when  discovered,  avoid  the 
assignment.  As  the  assignee  is  chosen  by  the  as- 
signor, they  are  usually  personal  friends,  and  entirely 
in  accord  with  respect  to  any  scheme  which  may  aid 
the  assignor  at  the  expense  of  his  creditors.  The  as- 
signor may  therefore  usually  rely  upon  the  assignee  to 
carry  out  any  anterior  understanding  or  agreement 
without  inserting  it  in  the  assignment,  or  giving  it 
any  other  written  authenticity.  But  it  may  be  proved 
and  avoided  by  any  competent  evidence.'^'^^  The  exist- 
ence of  a  fraudulent  agreement  may  be  inferred,  in  the 
absence  of  direct  proof  of  its  terms,  from  the  conduct 
of  the  parties.  Thus,  where  it  was  shown  that  the 
assignor  was  permitted  to  remain  in  the  possession  of 
the  property  assigned,  and  to  receive  benefit  therefrom, 
the  supreme  court  of  Texas  said:  "Unquestionably,  the 
deed  is  to  be  received  in  the  light  of  surrounding  cir- 
cumstances, in  order  to  arrive  at  the  real  intention  of 
the  parties.     Unquestionably,  the  assignor,  remaining 

2  Pick.  129;  Bratlway's  Estate,  1  Asbm.  212;  Green  v.  Branch  Bank. 
33  Ala.  643;  Goodrich  v.  Downs,  6  Hill,  43S;  Anderson  v.  Fuller.  1 
McMull.  Eq.  27.  30  Am.  Dec.  290;  Faunce  v.  Lesley.  G  Pa.  St.  121: 
Shaffer  v.  ^Vatkins,  7  "Watts  &  S.  219;  Austin  v.  .Tohnson.  7  Humph. 
191;  Quarles  v.  Kerr,  14  Gratt.  48.  In  the  followins?  cases  the  as- 
signment was  held  void  for  providing  for  support  of  grantor's  fam- 
ily: Richards  v.  Hazzard,  1  Stew.  &  P.  1.39;  Johnston  v.  Harry.  2 
Pen.  &  W.  82,  21  Am.  Dec.  420;  Henderson  v.  Downing,  24  Miss. 
117.  In  Mead  v.  Phillips,  1  Sand  Ch.  83,  the  dehtor  reserved  money 
to  pay  expenses  of  suits;  in  Harney  v.  Pack.  4  Smedes  &  M.  229. 
he  reserved  possession;  in  McClurg  v.  Lecky,  3  Pen.  &  W.  83,  23 
Am.  Dec.  64,  he  was  to  be  employed  by  the  assignees,  at  such  price 
as  he  should  judge  proper;  and  in  each  case  the  assignment  was  held 
void. 
675  Pettibone  v.  Stevens,  15  Conn.  19,  38  Am.  Dec.  57. 


«81  TERSONAL  PllOl'ERTY  SUBJIXT  TO  EXECUTION.        §  14C 

in  possession  of  the  goods  to  dispose  of  them  as  agent 
for  the  trustee,  must  be  deemed,  prima  facie  at  least, 
to  have  conducted  himself  in  his  dealing  with  them  in 
accordance  with  the  understanding  between  himself 
and  his  principal.  The  latter  was  bound  to  take  notice 
of  the  manner  in  which  he  conducted  himself  in  his 
employment.  What  the  agent  did,  the  principal  must 
be  presumed  to  have  assented  to;  and  it  is  not  unrea- 
sonable to  suppose  that  parties  had  contemplated  in 
advance  a  line  of  conduct  which  they  are  shown  to  have 
pursued.  Although  the  employment  of  the  debtor  by 
the  trustee  is  not  forbidden  by  law,  yet  'if  he  be  per- 
mitted, as  their  agent,  to  use  and  control  the  assigned 
effects  in  a  manner  wholly  inconsistent  with  the  pur- 
poses of  the  trust,  and,  as  his  own,  it  will  be  evidence 
that  the  assignment  was  not  made  in  good  faith.'  ^''^  * 
The  fair  and  natural  inference  deducible  from  the 
evidence  is,  that  the  dealing  of  the  parties  with  the 
goods  after  the  assignment  was  consonant  with  their 
intention  and  private  understanding  at  the  time  of 
making  it;  and  that  it  was  intended  not  only  to  secure 
the  preferred  creditors,  and  those  who  had  incurred 
liability  as  sureties  of  the  assignor,  but  also  to  secure 
to  the  assignor  himself  certain  benefits  out  of  the  prop- 
ertv  assigned,  to  the  hindrance  of  other  creditors  in  the 
enforcement  of  their  rights.  That  sucli  a  i)nrpL)se  will 
render  the  deed  fraudulent  and  void  as  to  the  deferred 
creditors  does  not  admit  of  question."  ^'^  It  must, 
however,  be  admitted  that  there  are  cases  inconsistent 
with  this  general  rule,  and  which  have  supported  reser- 
vations for  the  advantage  of  the  assignor.  The  rule 
itself  is  not  denied.     The  exceptional  cases  have  been 

eTsaBurrill  on  Assisinnionts.  174;  Smith  v.  Poavitts.  10  Ala.  92,  105. 
«76  Liun  V.  Wright,  IS  Tex.  317,  70  Am.  Dec.  2S2. 


§liG       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  CS2: 

occasioned  by  reservations  of  trifling  value,  or  of  so 
meritorious  a  nature  that  the  court  strained  the  law 
in  their  favor.^''^  The  assignment  must  be  uncondi- 
tional, and  must  place  the  property  beyond  the  control 
of  the  debtor.  Hence,  an  assignment  to  a  trustee,  per- 
sonally, for  his  life,  or  till  his  resignation,*'"'*  or  with  a 
power  of  revocation,"''*^  or  with  the  right  to  make  loans 
on  the  security  of  the  property  assigned,*'*^**  is  void; 
for  in  each  case<the  debtor  attempts  to  withdraw  the 
property,  for  a  time,  from  his  creditors,  with  the  i)rivi- 
lege  of  resuming  in  the  future  his  rights  of  ownership. 
In  one  instance,  an  assignment,  with  tlie  stipulation 
that  the  assignees  should  hold  the  property  for  twenty- 
five  days,  during  which  the  debtor  had  the  privilege  of 
paying  the  creditors,  and  putting  an  end  to  the  assign- 
ment, was  held  to  be  void;  ^'^^  but  in  another  instance, 
under  a  similar  assignment,  the  stipulation  in  favor  of 
the  assignor  was  held  to  be  a  mere  circumstance  for  the 
consideration  of  the  jury  in  determining  whether  there 
was  any  intent  to  delay  or  defraud  creditors."*^^  "Every 
assignment  is  absolutely  void  if  it  does  not  appoint  and 
declare  the  uses  for  which  the  property  is  to  be  held^ 
and  to  which  it  is  to  be  applied.  A  provision  that  the 
uses  shall  be  subsequently  declared  will  not  do.     They 

677  Canal  Bank  v.  Cox,  6  Creenl.  30.5;  Skipworth  v.  Cunningham, 
8  Leigh,  271,  31  Am.  Dec.  (i42;  Kevan  v.  Branch.  1  (Jratt.  27.5.  The 
cases  of  ivrurray  v.  Riggs.  1.5  .Tohns.  .571.  and  Austin  v.  Bell.  20 
Johns.  442,  11  Am.  Dec.  297.  sustaining  reservations  for  the  supimrt 
of  the  debtor's  family,  are  inconsistent  with  later  cases  in  the- 
same  state. 

678  Smith  V.  Hurst,  10  Hare.  30:  22  L.  J.  Ch.  289:  17  .Tur.  ,10. 

679  Rigors  V.  Murray,  2  Johns.  Ch.  5G3:  Cannon  v.  Peebles,  4  Ired. 
204;  2  Ired.  449;  Hyslop  v.  Clark,  14  Johns.  458. 

6S0  Phcppards  v.  Turpin,  3  Graft.  373. 
6^1  Whallon  v.   Scott,   10  Watts,  237. 
«S2  Hafner  v.  Irwin,  1  Ired.  490. 


683  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  146 

must   accompany  the   instrument,  and    appear  on  its 
face,  in  order  to  rebut  the  conclusive  presumption  of  a 
fraudulent    intent,  wliicli  would    otherwise  arise."  *^^ 
To  permit  the  assignor  to  declare  subsequently  the  uses 
for  which  the  property  is  to  be  held,  or  to  direct  what 
preferences  should  be  given,  would,  in  effect,  allow  him 
to  retain  a  control  over  the  property  as  valuable  to  him 
as  though  he  retained  an  interest  for  his  own  benefit  or 
that  of  his  family.     With  this  power  he  could  easily 
coerce  his  creditors  into  executing  releases  or  granting 
other  valuable  privileges.     Nor   can  a  power  of   this  ^' 
character  be  conceded  to  the  assignee.     Where  an  as- 
signment classified  the  creditors  of  the  assignor,  and 
designated  the  order  in  which  they  should  be  paid,  but 
gave   the   assignee  authority  from   time  -to  time,  and 
whenever  it  shall  be  for  the  mutual  interest  of,  the  sev- 
eral parties  beneficially  interested,  to  depart  from  the 
order  of  payment  hereinbefore  appointed  and  directed, 
by  settling  in  full  or  in  part,  by  compromises  or  other- 
wise, any  of    the  debts  or  liabilities    specified  in  tho 
schedule  hereto  annexed,  it  w^as  declared  void  on  its 
face,  because  there  was  apparent  therefrom  a  "design 
to  hinder  and  delay  creditors  in  the  collection  of  their 
debts,  and   because"  such   a   provision,    if   tolerated, 
would  enable  a  debtor  to  set  his  creditors  at  defiance, 
and    comjiel    them  to  bid    against  each  other  for  his 
favors,  and  would  be  virtually  vesting  him  with  pow- 
ers Bump  on  Fraudulent  Conveyancos,  382:  Orovor  v.  Wakomnn. 
11  Wend.  1ST,  2.J  Am.  T>ec.  024;  Harvey  v.  Mix.  24  Conn.  40<i:  Bur- 
bank  V.  Hammond,  3  Sum.  420.     Hence,  the  assignor  cannot  retain 
the  right  to  designate  the  order  in  which  his  creditors  shall  be  paid. 
If  any  preferences  are  intended,   they  must  be  stated   and   regu- 
lated in  the  assignment.     Sheldon  v.  Dodge.  4  Denio,  221:  Brainard 
T.  Dunning,  80  N.  Y.  214:  Strong  v.   Skinner,  4  Barb.  559;   Smith 
V.  Howard,  20  How.  Pr.  127. 


§  141}       PERSONAL  rROPERTY  SUBJECT  TO  EXECUTION.  6S4 

ers  which  no  one  would  suppose  he  could  in  terms  re- 
serve to  himself  in  the  deed  of  assignment.^**"* 

The  assignment  need  not  fix  the  time  within  w'hich 
the  trust  thereby-  created  must  be  executed.  But  if  a 
time  is  specified,  it  must  be  reasonable — not  so  short 
as  to  compel  a  sacrifice  of  the  proi^erty,  and  not  so  long 
as  to  indicate  an  intent  to  unreasonably  and  unneces- 
sarily postpone  the  payment  of  the  debts.  Anything 
unreasonable  in  either  respect  is  a  badge  of  fraud,  and 
may  avoid  the  assignment.*^**^  An  assignment  author- 
izing the  trustees  to  sell  on  credit  is  fraudulent  per  se 
in  some  states,*^*^**  fraudulent  prima  facie  in  others,*'*'' 
and  prima  facie  valid  in  others.**®*  A  difference  of 
opinion  exists  respecting   the  signification  of   certain 

6«iGaz7.ani  v.  Poyiitz,  4  Ala.  374,  37  Am.  Dec.  745;  Barnum  v. 
Hempstead,  7  Paige,  5GS. 

6S5  Carlton  v.  Baldwin.  22  Tex.  724:  Robins  v.  Embry,  1  Smedes 
&  M.  Ch.  207;  Sheerer  v.  Lautzerheizer.  6  Watts,  .543;  Sheppards  v. 
Turpin,  3  Gratt.  373;  Shearer  v.  Loftin,  26  Ala.  703;  Vaughan  v. 
Evans,  1  Hill  Ch.  414;  Repplier  v.  Orrich,  7  Ohio,  part  2,  p.  246; 
Knight  V.  Paokei',  1  Beasl.  214;  Farquharson  v.  McDonald.  2  Heisk. 
404;  Hafner  v.  Irwin.  1  Ired.  490;  Hardy  v.  Simpson,  13  Ired.  138; 
Rundlett  v.  Dole.  10  N.  H.  4-58;  Bennett  v.  Union  Bank,  5  Humph. 
612;  Adlum  v.  Yard,  1  Eawle,  163,  18  Am.  Dec.  608;  :\ritchell  v. 
Beal,  8  Yerg.  134,  29  Am.  Dec.  108;  Ward  v.  Trotter,  3  T.  B.  Men, 
1;  .Tohnson  v.  Thweatt,  18  Ala.  745. 

686  Barney  v.  Griffin,  2  N.  Y.  366;  Nichol.son  v.  Leavitt.  6  N.  Y. 
510,  57  Am.  Dec.  499;  Dunham  v.  AVaterman.  17  N.  Y.  17.  72  Am. 
Dec.  4m;  Bowen  v.  Parkhurst,  24  HI.  261;  Keep  v.  Sanderson,  2 
Wis.  42,  00  Am.  Dec.  404;  Porter  v.  Williams,  9  N.  Y.  142,  .59  Am. 
Dec.  519;  Truitt  v.  Caldwell.  3  Minn.  .364,  74  Am.  Dec.  764;  Inloes 
V.  Am.  Ex.  Bank,  11  Md.  173,  69  Am.  Dec.  190;  Jones  v.  Syer,  52 
Md.  216.  36  Am.  Rep.  366. 

687  Billings  V.  Billings,  2  Cal.  113,  .56  Am.  Dec.  319. 

688  Giniell  v.  Adams,  11  Humph.  285;  Shackelford  v.  Bank  of  Mo- 
bile, 22  Ala.  238;  Abercrombie  v.  Bradford.  16  Ala.  560;  Hoffman 
V.  Mackall.  5  Ohio  St.  124,  64  Am.  Dec.  637;  Conkling  v.  Coonrod. 
6  Ohio  St.  611:  Baldwin  v,  Peet,  22  Tex.  712.  75  Am.  Dec.  806:  Berry 
v.  Hayden,  7  Iowa,  472;  Moody  v.  Carroll,  71  Tex.  143,  10  Am.  St. 
Rep.  734. 


685  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  146 

phrases  frequently  employed  in  assignments,  as  where 
the  assignee  is  directed  to  sell  the  property  "upon  such 
terms  and  conditions  as  in  his  judgment  may  appear 
best  and  most  for  the  interest  of  the  parties  concerned." 
Perhaps  the  better  opinion  is,  that  these  words  do  not 
authorize  a  sale  upon  credit,  because  it  must  have  been 
intended  that  the  discretion  conferred  should  be  exer- 
cised within  legal  limits,  and  that  they  no  more  sanc- 
tion a  sale  upon  credit  than  they  do  any  other  illegal 
mode  of  disi)()sing  of  property;  such,  for  instance,  as  a 
sale  by  lottery  or  raffle.**^* 

So  a  marked  diversit}^  of  opinion  exists  in  regard  to 
the  validity  of  assignments  which  stipulate  that  the 
proceeds  shall  be  divided  among  those  creditors  only 
who  shall  execute  a  release  of  all  demands  against  the 
assignor.  This  stipulation  is  clearly  a  reservation  in 
favor  of  the  debtor,  as  it  provides  for  his  exoneration 
from  legal  liability.  It  is  an  attempted  coercion  of  the 
creditors;  and  is  not  a  full  and  unconditional  relin- 
quishment of  the  property  for  their  benefit.  If  allowed 
to  stand,  it  must  necessarily  enable  debtors  to  compel 
creditors  to  compromise  their  claims,  because  it  with- 
draws property  from  the  reach  of  execution,  and  says 
to  the  creditors,  You  shall  not  obtain  relief,  except  on 
such  terms  as  the  debtor  has  proposed.  By  a  majority 
of  the  authorities,  such  assignments  are  declared  to  be 
fraudulent  per  se;  *"*"  but  by  quite  a  respectable  minor- 
ess  Keiiocj:  V.  Slauson,  11  X.  Y.  ,*^02:  Nye  v.  Van  Hnsan.  r>  Mich. 
329,  74  Am.  Dec.  GOO;  Booth  v.  McNair,  14  Mich.  22:  Wliipple  v. 
rope.  r,:'.  in.  .ino.  Contra:  Hntcliinson  v.  Lord.  1  Wis.  280.  GO  Am. 
Dec.  3S1;  Sumner  v.  HiclvS.  2  Blaclc,  532. 

690  iiyslop  V.  Clarlie,  14  Johns.  45S;  Walieman  v.  Orover.  4  Paise, 
23;  Spaiikluig  v.  Strang,  32  Barb.  235;  Hafner  v.  Irwin.  1  Ired.  490; 
Robins  y.  Eml)ry.  1  Smedes  &  M.  Ch.  208:  Wolsoy  v.  Urner.  Wriiilit, 
606;  Swearingen  v.  Slicer,  5  Mo.  241;  Brown  v.  Knox,  6  Mo.  302; 


S  146       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  GSG 

ity,  tliey  are  asserted  to  be  good  and  valid,  if  not  other- 
wise objectionable;^^*  and  in  Arkansas  a  debtor  as- 
signing all  his  property  for  the  benefit  of  creditors  may 
exact  releases  from  creditors  as  a  condition  of  their 
participating  in  the  benefits  of  the  assignment.^^^  The 
known  character  and  circumstances  of  the  assignee 
may  be  such  as  to  clearly  disqualify  him  from  per- 
forming the  duties  of  his  trust.  If  so,  his  selection  in- 
dicates an  intent  adverse  to  the  interests  of  the  cred- 
itors, and  is,  at  least,  prima  facie  evidence  of  fraud. 
Among  the  well-established  disqualifications  of  as- 
signees  are,   "nonresidence,^^^   blindness,*'*^*   want   of 

Ingraham  v.  Wheeler,  6  Conn.  277;  Howell  v.  Edgar,  3  Scam.  417; 
■Ramsdell  v.  Sigerson,  2  Gilm.  78;  Malcom  v.  Hodges,  8  Md.  418; 
Albert  v.  Winn,  7  Gill,  44G;  Bridges  v.  Hindes,  16  Md.  104;  The 
Watchman,  1  Ware,  232;  Pearson  v.  Crosby,  23  Me.  261;  Yose  v. 
Hoi  comb,  31  Me.  407;  Hurd  v.  Silsby,  10  N.  H.  108,  34  Am.  Dec. 
142;  Atkinson  v.  Jordan,  5  Ohio,  295,  24  Am.  Dec.  281;  Conkling  v. 
Carson,  11  111.  503;  Graves  v.  Roy,  13  La.  454,  33  Am.  Dec.  568; 
Miller  v.  Conklin,  17  Ga.  430;  Henderson  v.  Bliss,  8  Ind.  100;  Butler 
V.  Jaffray,  12  Ind.  504;  Gimell  v.  Adams,  11  Humph.  283;  Wilde 
V.  Rawlings,  1  Head,  34;  Wilson's  Accounts,  4  Pa.  St.  430,  45  Am. 
Dec.  701;  Duggan  v.  Bliss,  4  Colo.  223,  34  Am.  Rep.  80;  Tarbox  v. 
Stevenson,  56  Minn.  510;  Clarke  v.  Baker,  36  S.  C.  420. 
601  Todd  V.  Bucknam,  11  Me.  41;  Borden  v.  Sumner,  4  Pick.  265, 

16  Am.  Dec.  338;  Nostrand  v.  Atwood,  19  Pick.  281;  Halsey  v.  Whit- 
ney. 4  Mason,  206;  Lippiucott  v.  Barker,  2  Binn.  174,  4  Am.  Dec. 
433;  Livingston  v.  Bell,  3  Watts,  198;  Bayne  v.  Wylie,  10  Watts, 
309;  Skipwith  v.  Cunningham,  8  Leigh,  271,  31  Am.  Dec.  642;  Niolon 
V.  Douglas,  2, Hill  Ch.  443,  30  Am.  Dec.  368;  Le  Prince  v.  Guillemot, 

I  Rich  Eq.  187;  Brashear  v.  West,  7  Pet.  608;  Pearpolnt  v.  Graham, 
4  Wash.  C.  O.  232;  Lea's  Appeal,  9  Pa.  St.  504;  Hall  v.  Denison, 

17  Vt.  310;  Spencer  v.  Jackson,  2  R.  I.  35;  Gordon  v.  Cannon,  18 
Gratt.  387;  Wolf  v.  Gray,  53  Ark.  75;  Collier  v.  Davis,  47  Ark.  367, 
58  Am.  Rep.  758;  Hewlett  v.  Cutler,  137  Mass.  285;  Smith  v.  Millett, 

II  R.  I.  528;  Keating  v.  Vaughn,  61  Tex.  518. 

692  King  V.  Hargadine  Kittrlck  Co.,  60  Ark.  1;  Wolf  v.  Gray,  53 

Ark.  75. 
093  Cram  v.  Mitchell,  1  Sand.  Ch.  251;  Cox  v.  Piatt,  32  Barb.  126; 

19  How.  Pr.  121. 
694  Cram  v.  Mitchell,  1  Sand.  Ch.  251. 


<5S7  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  14G 

learning, ^"^  conflicting  interosts,*^^"  and  insolvcncj-.'"*'^'' 
It  is  manifest  that  any  consideration  wliicli  we  can 
here  give  to  tlie  subject  of  assignments  for  the  benefit 
of  creditors  must  necessarily  be  incomplete.*''*'^  The 
question  involved  in  this  subject  most  germane  to  the 
'topic  here  under  consideration  is,  does  an  assignment 
for  the  benefit  of  creditors,  because  of  some  fraud  or 
other  vice  therein,  leave  the  property  in  such  a  condi- 
tion that  it  may,  whether  possession  thereof  has  been 
taken  by  the  assignee  or  not,  be  subjected  to  execution 
against  the  assignor^  Though  his  object  was  to  hinder 
or  defraud  his  creditors,  still  the  beneficiaries  in  the 
assignment  are  those  same  creditors,  and  their  equities 
are,  at  least,  equal  to  those  of  any  nonassenting  cred- 
itor who  may  seek  to  disregard  the  assignment,  and  by 
a  levy  of  his  writ  thereby  obtain  a  i)reference  over  other 
creditors.  Whether  the  assignment  is  fraudulent  or 
not,  the  statutes  of  the  state  in  which  it  was  executed 
may  require  it  to  be  free  from  preferences  and  to  in- 
clude all  the  debtor's  property  subject  to  execution,  or 
that  it  be  accompanied  by  specified  affidavits  or  sched- 
ules, or  that  the  assignee,  within  a  time  prescribed, 
give  a  bond  or  take  an  oath  of  office,  or  otherwise  qual- 
ify for  the  discharge  of  the  trust,  and  the  assignment 
assailed  may  have  omitted  compliance  with  the  statute 
in  some  of  these  respects.  In  New  York  it  has  been 
held  that  an  assignment  for  the  benefit  of  creditors, 

605  Cram  y.  Mitchell,  1  Sand.  Ch.  251;  Gueriu  v.  Hunt,  6  Minn. 
375. 

896  Hays  V.  Doane,  3  Stock.  84. 

697  An.soll  V.  Roseubury,  12  ilich.  241;  Browning  v.  Hart.  0  Barb. 
91;  Reed  v.  Emory,  8  Paige.  417.  3.')  Am.  Dec.  720;  Connah  v.  Sedg- 
wick, 1  Barb.  211;  Ciirrie  v.  Hart.  3  Sand.  Cli.  S.jG. 

6!>7  a  For  a  more  ample  consideration  of  this  subject,  see  note  to 
Bank  of  Little  Rock  v.  Frank,  58  Am.  St  Rep.  74  to  101. 


§  1113       rEK.-SONAL  PROPERTY  SUBJECT  TO  EXECUTION.  OSS 

not  ill  compliance  witli  the  statute,  may  be  treated  as 
void  by  an  attachment  or  execution  creditor  who  has 
not  assented  thereto.*'^^  In  some  of  the  other  states^ 
the  writ  may  be  levied,  notwithstanding  the  assign- 
ment, if,  before  the  IcAy,  the  other  creditors  have  not 
assented  and  made  themselves  parties  to  the  assign- 
ment,  but,  as  to  those  who  have  thus  assented  and  be- 
come parties,  a  levy  cannot  be  made  because  of  fraud 
on  the  part  of  the  assignor,  if  they  have  not  partici- 
pated therein.**'**'*  Where,  from  the  assignment  itself 
or  the  subsequent  writings  connected  w^ith  it,  and 
which  are  matters  of  record,  it  clearly  appears  that  the 
assignment  is,  in  contemplation  of  law,  fraudulent,  or 
that  it  seeks  some  purpose,  the  accomplishment  of 
which  the  law  will  not  permit,'*'**  or  that  compliance 
with  some  mandatory  provision  of  the  statute  has  been 
omitted,  there  can  be  no  innocent  assignee  nor  innocent 
creditors,  for  all  persons  having  knowledge  of  the  as- 
signment and  such  proceedings  thereunder  have  notice 
of  the  vices  connected  therewith,  and  therefore  we  see 
no  reason  for  sustaining  it  as  against  any  nonconsent- 
ing  creditor  and  no  reason  why  he  may  not  levy  a  writ 
upon  any  of  the  property  sought  to  be  assigned  without 
taking  any  notice  whatever  of  the  assignment.''***  An 
assignment  for  the  benefit  of  creditors  may  be  void  be- 
cause it  does  not  comply  with  the  statutory  require- 
ments in  relation  to  making  a  valid  assignment,  as 
where  no  inventory-  is  made  and  filed  within  the  time 

698  Hess  V.  Hess.  117  N.  Y.  300;  McConnell  v.  Sherwood,  84  N.  Y. 
522,  38  Am.  Rep.  537. 

699  Copeland  v.  Weld.  8  Me.  411;   Ingraham  v.   Geyer,   13  Mass. 
147,  7  Am.  Dec.  1.32;  Everett  v.  Walcott,  15  Pick.  94. 

700  Riley  V.  Carter,  7G  Md.  .581.  .35  Am.  St.  Rep.  443. 

701  Orcber  v.  Culver,  84  Wis.  2135;  Knigbt  v.  Packer,  12  N.  J.  L. 
214,  72  Am.  Dee.  388. 


689  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  146 

prescribed/"^  or  where  the  oath  required  is  not 
made,''"^  or  where  the  assignor's  right  of  redempti'on 
in  certain  premises,  conveyed  for  the  security  of  a  debt, 
is  omitted  from  the  schedule/""*  or  where  the  statutory 
certificate,  that  the  copy  of  the  assignment,  filed  as  pre- 
scribed by  statute,  is  a  true  and  correct  copy  of  the  orig- 
inal, has  not  been  indorsed  or  written  on  the  copy  of 
the  assignment,''"^  or  where  omitted  creditors,  whose 
debts  are  secured  by  collaterals,  or  otherwise,  are  ex- 
cluded from  the  benefits  of  the  assignment,  or  where 
no  definite  time  is  fixed  within  which  such  creditors 
must  file  their  claims/"**  or  where  the  deed  of  assign- 
ment is  not  witnessed,'"'"  or  not  acknowledged  and  re- 
corded.'^"* Statutory  provisions  prescribing  formali- 
ties to  be  observed  in  making  assignments  for  the  bene- 
fit of  creditors  are  mandatory,'"'"*  and  an  intention  to 
defraud,  in  any  material  matter  whatever,  will  always 
vitiate  the  assignment.'^"  With  respect  to  the  omission 
of  assets  from  the  schedule,  the  question  in  each  par- 
ticular case  should  be  determined  with  reference  to  the 
number,  materiality,  and  importance  of  the  omissions, 
and  whether  they  were  made  by  oversight  and  inad- 
vertence, or  deliberately  and  with  intention  to  de- 
fraud.'^^^     An  omission  of  assets  amounting  to  three 

702  Connor  v.  Omaha  Nat.  Bank,  42  Neb.  G02. 

703  Williams  v.  Crocker,  36  Fla.  61. 

704MiMillan  v.  Kuapp,  76  Ga.  171,  2  Am.  St.  Eep.  29. 

T05  Grever  v.  Culver,  84  Wis.  295. 

106  Bickliam  v.  Lake,  51  Fed.  Rep.  892. 

T07  Sager  v.  Summers,  49  Neb.  459. 

708  Seal  V.  Duffy,  4  Pa.  St.  274,  45  Am.  Dec.  G91;  Wright  v.  Lee, 
2  S.  D.  625;  Cannon  v.  Deming,  3  S.  D.  421. 

709  Grever  v.  Culver,  84  Wis.  295,  298. 

710  Woods  V.  Haynes,  92  Ga.  180,  186. 

711  Turnipseed  v.   Schaefer,   76  Ga.   109,  2  Am.   St.   Rep.  17;  Al- 

VOL.  L— 44 


§  14G       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION. 


690 


thousand  dollars  is  enough  to  vitiate  an  assignment, 
under  a  law  requiring  the  schedules  to  be  "full"  and 
"complete,"  "^  and,  generally,  when  the  statutes  of  the 
state  appear  to  be  mandatory  and  to  indicate  that  a 
compliance  with  their  provisions  is  essential  to  an  as- 
signment for  the  benefit  of  creditors,  assignments  in 
disregard  of  such  statutes,  whether  actually  or  pre- 
sumptively fraudulent,  must  be  disregarded,  whether 
the  assignee  or  the  creditors  participate  in  the  fraud 
or  not,  or  had  notice  of  the  other  vice  on  account  of 
which    the    assignment  is  asisailedJ^^     Where    these 
views  prevail,  the  assignment  or  the  title  of  the  as- 
signee is  subject  to  collateral  attack.     There  is,  how- 
ever, a  growing  tendency  in  the  courts,  where  their  de- 
cisions are  not  controlled  by  statutory  provisions,  to 
perfect,  rather  than  to  disregard,  an  assignment  for  the 
benefit  of  creditors  when  not  infected  with  any  fraud  of 
which  the  assignee  or  the  creditors  relying  thereon  had 
any  notice.    Hence,  such  courts,  where  improper  prefer- 
ences are  sought,  may  disregard  such  preferences  and 
permit  the  valid  provisions  of  the  assignment  to  remain 
in  force,  and,  where  improper  acts  have  been  done  by 
the  assignor,  or  he  has  been  actuated  by  improper  mo- 
tives, or  where  he  or  his  assignee  has  in  some  respects 
failed  to  comply  with  the  law,  the  creditors  who  are 

bany  etc.  S.  Co.  v.  Southern  etc.  Works,  76  Ga.  135,  2  Am.  St.  Rep. 
26;  Woods  v,  Haynes.  92  Ga.  180. 

712  Turnipsecd  v.  Schaefer,  76  Ga.  109,  2  Am.  St.  Rep.  17;  Albany 
etc.  S.  Co.  V.  Southern  etc.  Works,  76  Ga.  135,  2  Am.  St.  Rep.  26. 

713  Craft  V.  Bloom,  59  Miss.  69,  42  Am.  Rep.  351;  Savage  v.  Knight. 
92  N.  C.  493,  53  Am.  St.  Rep.  423;  Coblentz  v.  Driver  M.  Co.,  10 
Utah,  96;  Bank  of  Commerce  v.  Payne,  86  Ky.  446;  Shufield  v.  Jen- 
kins, 22  Fed.  Rep.  359;  Harshman  v.  Lowe,  9  Ohio,  93;  Sutherland 
V.  Bradner,  116  N.  Y.  410;  Blair  v.  Black.  31  S.  C.  346.  17  Am.  St. 
Rep.  30;  Kimball  v.  Evans,  58  Vt.  655;  Summers  v.  White,  71  Fed. 
Rep.  106. 


691  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  147 

not  at  fault  will  not  be  punished  for  such  misconduct 
or  noncompliance,  and  the  assij^niucut  will  be  treated 
as  creating  a  valid  trust  in  their  I'avor,  entitlinj;-  all  to 
share  pro  rata  in  the  assigned  property,  whether  some 
seek  to  assail  the  assignment  or  not.''^* 

§  147.  Necessity  of  Change  of  Possession  Accompany- 
ing Transfer  of  Title.— In  many  of  the  s.tates,  a  sheriff 
may  levy  upon  personal  property  under  an  execution 
against  a  vendor  thereof,  if  he  finds  such  property  in 
the  possession  of  such  vendor,  unless  there  has  first 
been  an  open  and  notorious  delivery  to  the  vendee,  and, 
after  such  delivery  and  notoriety,  the  property  has, 
in  good  faith,  been  returned  to  the  custody  of  the 
vendor.  The  statute  of  13  Elizabeth,  c.  5,  declared  that 
every  feoffment,  grant,  alienation,  conveyance  of  any 
lands,  tenements,  hereditaments,  goods,  and  chattels, 
and  every  bond,  suit,  judgment,  and  execution  made  to 
delay,  hinder,  or  defraud  creditors,  shall,  as  against 
the  person  delayed  or  defrauded,  be  utterly  void.  This 
statute  does  not  purport  to  modify  the  rules  nor  the 
effect  of  evidence;  nor  does  it  declare  that,  from  the 
existence  of  any  particular  fact,  an  intent  to  hinder, 
delay,  or  defraud  creditors  shall  be  conclusively  pre- 
sumed.    But  in  the  forty-fourth  year  of  the  reign  of 

T14  Farwell  v.  Cohen,  138  111.  216;  Wolf  v.  Slaw.son,  83  Mich.  543, 
21  Am.  St.  Rep.  613;  Hamilton-Brown  S.  Co.  v.  IMorcer.  84  Iowa. 
537,  35  Am.  St.  Rep.  331;  Second  N.  B.  v.  Schranck,  43  Minn.  38: 
Barrett  v.  Pollak  Co.,  108  Ala.  390,  54  Am.  St.  Itep.  172;  Bank  of 
Little  Rock  v.  Frank,  62  Ark.  16.  58  Am.  St.  Rep.  65;  Henderson 
V.  Pierce,  108  Ind.  462;  Grubbs  v.  King,  117  Ind.  243;  Truss  v.  Da- 
vidson. 90  Ala.  359;  Kruse  v.  Prindle,  8  Or.  158:  Paul  v.  Bansh.  85 
Va.  9.55;  Talley  v.  Curtain,  54  Fed.  Rep.  43;  Smith  v.  Stoker.  8 
Colo.  286;  Hempstead  v.  Johnson,  18  Ark.  123.  65  Am.  Dec.  458; 
Emerson  v.  Senter.  118  U.  S.  3;  Hassel  v.  I^yfort,  105  Ind.  534; 
Moody  V.  Carroll,  71  Tex.  143,  10  Am.  St.  Rep.  734. 


§  147       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  692 

Elizabetli,  an  information  against  Twyne,  for  making 
and  publishing  a  fraudulent  gift  of  goods,  was  heard 
in  the  star-chamber.  One  Pierce,  being  possessed  of 
goods  and  chattels,  made  in  secret  a  general  deed  of 
gift  of  all  his  goods  and  chattels  to  Twyne,  in  consid- 
eration of  the  release  of  antecedent  indebtedness. 
Pierce,  however,  continued  in  possession,  treating  the 
property  in  all  respects  as  though  it  were  his  own.  C, 
another  creditor  of  Pierce,  took  out  a  fieri  facias,  and 
was  proceeding  to  levy,  when  he  and  the  sheriff  were 
forcibly  resisted  by  Twyne,  who  claimed  the  goods  un- 
der his  gift  from  Pierce,  "and  whether  this  gift,  or  the 
whole  matter,  was  fraudulent  and  of  no  effect,  by  the 
said  act  of  13  Elizabeth,  or  not,  was  the  question.  And 
it  was  resolved  by  Sir  Thomas  Egerton,  lord-keeper  of 
the  great  seal,  and  by  the  chief  justices  Popham  and 
Anderson,  and  the  whole  court  of  star-chamber,  that 
this  gift  was  fraudulent  within  the  statute  of  13  Eliza- 
beth.    And  in  this  case  divers  points  were  resolved: 

"1.  That  this  gift  had  the  signs  and  marks  of  frauds 
because  the  gift  is  general,  without  exception,  of  his 
apparel,  or  anything  of  necessity;  for  it  is  commonly 
said,  quod  dolosus  versatui  in  generalibus. 

"2.  He  continued  in  possession,  and  used  them  as 
his  own;  and  by  reason  thereof  he  traded  and  trafficked 
with  others,  and  defrauded  and  deceived  them. 

"3.  It  was  made  in  secret,  et  dona  clandestina  sunt 
semper  suspiciosa. 

"4.  It  was  made  pending  the  writ, 

"5.  Here  was  a  trust  between  the  parties;  for  the 
donor  possessed  all,  and  used  them  as  his  proper  goods, 
and  fraud  is  always  appareled  and  clad  with  a  trust, 
and  trust  is  the  cover  of  fraud. 


€93  PERSONAL  PROPEIITY  SUBJECT  TO  EXECUTION.        §  147 

"6.  The  deed  coutaius  that  the  gift  was  made  hoo- 
■estly,  truly,  and  boua  fide;  et  clausulae  iucousuet  sem- 
I^er  inducuut  suspicionem, 

"Secondly,  it  was  resolved  that,  notwithstanding 
here  wajs  a  true  debt  to  Twyne,  and  a  good  considera- 
tion of  the  gift,  yet  it  was  not  within  the  proviso  of  the 
said  act  of  13  Elizabeth,  by  which  it  was  provided  that 
said  act  shall  not  extend  to  any  estate  or  interest  in  the 
lands,  etc.,  goods,  or  chattels,  made  on  good  considera- 
tion, and  bona  fide;  for  no  gift  shall  be  deemed  to  be 
bona  fide  within  said  proviso  Avhich  is  accompanied 
with  any  trust.  As  if  a  man  be  indebted  to  five  several 
l)ersons,  in  several  sums  of  twenty  pounds,  and  hath 
goods  of  the  value  of  twenty  pounds,  and  makes  a  gift 
of  all  the  goods  to  one  of  them,  in  satisfaction  of  the 
debt,  but  there  is  a  trust  between  them,  that  the  donee 
shall  deal  favorably  with  him  in  regard  to  his  poor 
<?state,  either  to  permit  the  donor,  or  some  other  for 
him  or  for  his  benefit,  to  use  or  have  possession  of 
them,  and  is  contented  that  he  shall  pay  him  his  debt 
when  he  is  able,  this  shall  not  be  called  bona  fide  within 
said  proviso;  for  the  proviso  saith,  on  a  good  considera- 
tion and  bona  fide;  so  a  good  consideration  does  not 
suffice  if  it  be  not  also  bona  fide.  And,  therefore, 
reader,  when  any  gift  shall  be  to  you,  in  satisfaction  of 
a  debt,  by  one  who  is  indebted  to  others  also:  first,  let 
it  be  made  in  a  public  manner  and  before  the  neighbors, 
and  not  in  private,  for  secrecy  is  a  mark  of  fraud;  sec- 
ond, let  the  goods  and  chattels  be  appraised,  by  good 
people,  to  the  very  value,  and  take  a  gift  in  particular 
in  satisfaction  of  your  debt;  third,  immediately  after 
the  gift,  take  possession  of  them,  for  continuation  of 
possession  in  the  donor  is  a  sign  of  trust."  '^** 

715  Twyne's  Case,  3  Coke.  SO:  1  Sniitirs  Load.  Cas.  1. 


§  147       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  694 

In  this  case,  the  continuance  of  the  vendor's  posses- 
sion was  certainly  one  of  the  most  material  of  the 
grounds  upon  which  the  court  reached  the  conclusion 
that  the  sale  was  fraudulent,  aud,  therefore,  void  as 
against  other  creditors.  It  does  not,  however,  appear 
clearly  that  this  ground  alone  could  have  produced  the 
same  conviction  as  when  aided  by  the  other  grounds. 
Possession  was  here  characterized  as  a  sign  of  fraud; 
but  it  was  not  asserted  to  be  an  indubitable  sign. 

Whether  justifiably  or  not,  Twyne's  Case  came  to  be 
regarded  as  authority  for  the  doctrine  that,  when  an 
absolute  sale  has  been  made,  the  continuance  of  the 
vendor  in  possession  of  the  goods  sold  is  fraudulent  per 
se,  rendering  the  sale  void  as  to  creditors,  and  the  prop- 
erty liable  to  seizure  and  sale  under  execution  against 
the  vendor.  This  doctrine  received  the  support  of  some 
subsequent  English  adjudications;''***  but  in  that 
country  it  was  afterward  clearly  displaced  by  the  other 
doctrine,  that  "the  question  of  fraud  or  no  fraud  is  one 
for  the  consideration  of  the  jur^";  that  the  continu- 
ance of  the  vendor  in  possession  of  the  property  sold 
is  to  be  treated  ais  a  very  material  fact  in  such  consid- 
eration, but  not  as  requiring  a  verdict  of  fraud  where 
the  jury  is  satisfied  that  the  transaction  was  bona  fide, 
and  without  any  intent  to  hinder,  delay,  or  defraud.''*'' 

716  Edwards  v.  Harben.  2  Terra  Rep.  oST:  Reed  v.  Blades?,  5 
Taunt.  212;  Paget  v.  Percliard,  1  Esp.  2^5;  Wordall  v.  Smith,  1 
Camp.  332;  Shears  v.  Rogers,  3  Barn.  &  Adol.  303. 

717  Martindale  v.  P.ooth,  3  Barn.  &  Adol.  498;  Carr  v.  Burdiss,  5 
Tyrw.  316;  1  Cromp.  M.  &  R.  782;  Laliiiior  v.  Batson,  4  Barn.  & 
C.  652;  7  Dowl.  &  R.  106;  Kidd  v.  Rawlinson.  2  Bos.  &  P.  59;  3 
Esp.  52;  Pennell  v.  Dawson,  18  Com.  B.  355;  Hale  v.  Met.  S.  O. 
Co.,  28  L.  J.  Ch.  777;  7  Week.  Rep.  316;  4  DreAv.  492;  Watkins  v. 
Birch,  4  Taunt.  823;  Cole  v.  Davies.  1  I.d.  Raym.  724:  Macdona  v. 
Swiney,  8  Irish  Ch.  L.  Rep.  73;  Storor  v.  Hunter.  3  Barn.  &  C. 
368;  5  Dowl.  &  R.  240;  Eastwood  v.  Browne,  Russ.  &  M.  312;  Hun- 
ter V.  Corbett,  7  U.  C.  Q.  B.  75. 


695  PERGONAL  I'ROl'ERTY  .Sb-BJECT  TO  EXECUTION.        §  148 

But  by  the  act  of  17  and  18  Victoria,  c.  3G,  "for  pre- 
venting frauds  upon  creditors  by  secret  bills  of  sale  of 
personal  chattels,"  every  bill  of  sale  of  chattels,  wheth- 
er absolute  or  conditional,  whether  subject  to  or  free 
from  trusts,  must  be  filed  with  a  public  officer,  named 
in  the  act,  within  twenty-one  days  after  the  making 
or  giving  of  such  bill  of  sale,  or  it  will,  in  favor  of 
creditors,  be  regarded  as  void  ,as  to  all  chattels  still  in 
possession  of  the  vendor. 

§  148.  Rule  as  to  Change  of  Possession  in  Majority 
of  the  United  States. — Mr.  Parsons,  in  his  work  on  con- 
tracts, says:  "There  seems  now  to  be  a  tendency  to  con- 
sider the  question  of  fraud  as  a  question  of  fact,  in 
relation  to  which  the  circumstance  of  possession  is  of 
great  weight,  though  not  absolutely  conclusive.  The 
question  is  thus  taken  from  the  court,  who  should  infer 
it  from  a  single  fact,  and  is  left  to  the  jury,  who  may 
consider  all  the  facts,  and  determine  how  far  the  fact 
of  possession  is  explained  and  made  consistent  with  an 
honest  purpose" ;  '^^  and  he  further  states,  in  his  foot- 
note, that  "although  few  questions  in  the  law  present 
a  greater  conflict  of  authorities  than  this,  we  believe 
that  reason,  analogy,  and  the  current  of  modern  au- 
thority, both  English  and  American,  support  the  prin- 
ciple laid  down  in  the  text."  While  these  remarks  are 
substantially  correct,  the  current  of  the  American  au- 
thority tends  in  the  direction  indicated  with  h^ss  force 
than  Mr.  Parsons  seemed  to  realize.  In  fact,  the 
current  of  these  authorities,  like  that  of  some  of  our 
mightiest  rivers,  so  frequently  shifts  from  one  side  to 
the  other,  and    is  so  obscured   by  the   turbid   matter 

718  1  Parsons  on  Contracts,  4th  ed.,  442. 


§  148       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  696 

through  which  it  flows,  and  of  which  it  is  a  part,  that 
its  course  can  hardly  be  descried  by  the  most  careful 
observer;  and,  w^hen  ascertained,  must  constantly  be 
verified  by  new  observations.  If  the  American  decis- 
ions on  this  subject  were  to  be  ranged  in  opposing  lines, 
it  would  be  found  that  neither  side  far  outnumbered 
the  other;  while  probably-  a  majority  of  the  jurists  of 
whom  Americans  have  felt  most  proud  would  be  found 
to  have  indorsed  the  opinions  which  are  now  regarded 
as  deviating  from  the  current  of  authority.  The  law 
as  stated  by  Mr.  Parsons  in  the  above  quotation  pre- 
vails in  Alabama,'^-'^**  Arkansas,'^^^  and  Georgia.'^^^  In 
Indiana  a  different  rule  was  at  first  laid  down  in  refer- 
ence to  mortgages;'''^  but  was  soon  after  modified,''^* 
and  was  next  followed  by  a  case  involving  the  effect  of 
possession  retained  by  a  vendor  after  an  absolute  sale. 
We  are  not  sure  that  we  understand  the  legal  principles 
upheld  by  this  last  decision,  but  we  believe  that  the 
court  intended  to  hold  that  fraud  was  a  question  of 
fact  for  the  jury,  notwithstanding  the  want  of  a  change 
of  possession.'^^*  The  matter  is  now  set  at  rest  by  a 
statute,  under  which  a  sale,  not  accompanied  by  a 
change  of  possession,  is  presumed  to  be  fraudulent, 
"until  it  shall  be  made  to  appear  that  the  same  was 

719  Mayer  v.  Clark,  40  Ala.  259;  Upson  v.  Raifortl,  29  Ala.  195; 
Mellard  v.  Hall,  24  Ala.  220;  Noble  v.  Coleman.  IG  Ala.  77. 

720  Cocke  V.  Chapman,  2  Eng.  197.  44  Am.  Dec.  5.3G;  Field  v. 
Simco.  2  Eng.  269;  George  v.  Norris,  23  Ark.  128;  Smith  v.  Jones, 
63  Ark.  232. 

721  Fleming  v.  Townsend,  6  Ga.  103,  50  Am.  Dec.  318;  Ector  v. 
Welsh,  29  Ga.  443;  Collins  v.  Taggart,  57  Ga.  357. 

722  Jordan  v.  Turner,  3  Blackf .  309. 

723  Watson  V.  Williams,  4  Blackf.  26,  28  Am.  Dec.  3G. 
»24  Foley  V.  Knight,  4  Blackf.  420. 


-697     PERSONAL  PROrERTY  SUBJECT  TO  EXECUTION.   §  148 

made  in  good  faith."  ''^'^  In  Louisiana/-'*  ^  Maine/^'* 
Massachusetts,'^^''  Michigan,"-'*  Minnesota,"^  and  Mis- 
sissippi,'^^** the  rule  mentioned  by  ]\Ir.  Parsons  is  in 
force.  Such  is  also  the  case  in  New  Jersev,'*^^  the  case 
of  Chumar  v.  Wood,  1  Ilalst.  155,  whicli  established  a 
contrary  doctrine,  having  been  ov;rruk'd.  In  Ne- 
braska, the  vendee,  notwithstanding  his  want  of  pos- 
session, may,  under  section  70,  chapter  43,  of  the  Re- 
vised Statutes,  be  permitted  to  show  that  the  sale  was 
made  in  good  faith,  and  without  intent  to  defraud  cred- 
itors.''^^ New  York  formerly  gave  her  adherence  to 
the  rule  of  the  earlier  English  cases,  maintaining  that 
possession  by  the  vendor,  in  ordinary  circumstances, 
after  an  absolute  sale,  gave  rise  to  an  indisputable 
presumption  of  fraud;  but,  under  the  influence  of  statu- 
tory provisions,  she   now  regards   such   possession  as 

726  Kane  v.  Drake,  27  Ind.  32. 

725a  Keller  v.  Blaneliard,  19  La.  Ann.  53;  •Devonshire  v.  Gauth- 
reanx.  32  La.  Ann.  1132. 

726  Reed  V.  Jewott  5  Greenl,  9G;  Ulmer  v.  Hills,  8  Greonl.  32G; 
Cutter  V.  Copeland,  IS  Me.  127;  Clark  v.  French,  23  Me.  221,  39  Am. 
Dee.  GIS;  Reed  v.  Reed,  70  Me.  504;  Farrar  v.  Smith,  04  Me.  74. 

727  Dempsey  v.  Gardner,  127  Mass.  381,  34  Am.  Rep.  389;  Harlow 
V.  Hall,  132  Mass.  232;  Brooks  v.  Powers,  15  Mass.  244,  8  Am.  Dec. 
S9;  Marden  v.  Babcock,  2  Met.  99;  Adams  v.  Wheeler,  10  Pick.  199; 
Martriek  v.  Linficld.  21  Pick.  325;  Ingalls  v.  Ilerrick.  108  Mass.  351, 
11  Am.  Rep.  3G0:  Briirgs  v.  Parkman.  2  Met.  258,  37  Am.  Dec.  89. 

728  .Tackson  v.  Dean,  1  Doug.  517;  Oliver  v.  Eaton.  3  ^Nlich.  114; 
Moliter  v.  Robinson,  40  Mich.  200;  Carpenter  v.  Graham,  42  Mich. 
191;  ITauser  v.  Beaty,  93  Mich.  499. 

729  Vose  V.  Stickney,  19  Minn.  3G7;  Lathrop  v.  Clayton,  45  Minn. 
124. 

730  Ketchum  v.  Brennan,  ."3  -\Iiss.  59G;  Ililliard  v.  Cagle,  4G  Miss. 
309:  Comstock  v.  Rayford,  12  Smedes  &  M.  3(>9. 

731  Sh(>rron  v.  Humphreys,  2  Green,  217;  Runnyon  v.  Goshon.  1 
Beasl.  8(5;  Miller  v.  Pancoast,  29  N.  J.  L.  250. 

732  pyie  V.  Warren.  2  Neb.  241;  Robinson  v.  Uhl.  6  Neb.  328;  Fitz- 
gerald V.  Meyer,  25  Neb.  77;  Powell  v.  Yeazell,  4G  Neb.  225. 


§  148       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  69& 

prima  facie  evidence  of  fraud,  liable  to  rebuttalJ^* 
North  Carolina'^^*  and  Ohio''^^  have  always  maintained 
the  rule  finally  reached  in  New  York.  Tennessee  at 
first  denied/'*"  but  subsequently  ad'opted,  the  same 
rule/^^  In  Hudnal  v.  Wilder,  4  McCord,  306,  IT  Am. 
Dec.  744,  the  court  said:  "A  vendor  continuing  in  pos- 
session is  regarded,  as  to  creditors  or  subsequent  pur- 
chasers, as  the  owner,  against  the  most  solemn,  uncon- 
ditional deed  to  a  bona  fide  purchaser  not  in  possession. 
These  are  the  settled  rules  of  the  common  law,  to 
which  the  common  sense  of  the  community  yields  a 
ready  assent,  from  the  obvious  tendency  to  fraud  to 
which  a  contrary  doctrine  would  lead."  Notwithstand- 
ing this  emphatic  language,  other  cases  in  the  same 
state  fully  establish  that  the  possession  of  a  vendor 
after  the  sale  is  no  more  than  prima  facie  evidence  of 
fraud,*^^^  except  when  the  sale  was  made  in  considera- 
tion of  a  prior  indebtedness,  in  which  case  it  is  con- 
clusive evidence, ''^^  unless  the  retention  of  possession  is 
under  a  contract  of  hiring  made  in  good  faith  between 

733  Bissell  V.  Hopkins,  3  Cow.  1(50,  15  Am.  Dec.  259;  Thompson 
V.  Blanchard,  4  N.  Y.  303;  Griswold  v.  Sholdon,  4  N.  Y.  580;  Stark 
V.  Grant,  16  N.  Y.  Svipp.  520. 

734  Boon  V.  Hardie,  83  N.  C.  470;  Howell  v.  Elliott,  1  Dev.  76; 
Rea  V.  Alexander,  5  Ired.  644. 

735  Rogers  V.  Dare,  Wright,  136;  Burbridge  v.  Seely,  Wright,  359; 
Collins  V.  Myers,  16  Oh.  .547. 

736  Ragan  v.  Kennedy,  Over,  91. 

737  Callen  v.  Thompson,  3  Yerg.  475,  24  Am.  Dec.  587;  Maney  v. 
Kilough,  7  Yerg.  440;  Wiley  v.  Lashlee,  8  Humph.  717;  Richmond 
V.  Crudup,  Meigs,  581,  33  Am.  Dec.  104;  Shaddon  v.  Knott,  2  Swan,. 
58,  58  Am.  Dec.  63. 

738  Blake  v.  Jones.  1  Bail.  Eq.  141.  21  Am.  Dec.  530;  Kid  v. 
Mitchell,  1  Nott  &  McC.  334.  9  Am.  Dec.  702;  Terry  v.  Belcher,  1 
Bail.  508;  Cox  v.  McBee,  1  Spears,  195;  Belk  v.  Massed,  11  Rich. 
614;  Smith  v.  Henry,  2  Bail.  118. 

739  Smith  V.  Henry,  1  Hill  fS.  C),  16;  Majiles  v.  Maples.  Rice  Eq. 
300;  Anderson  v.  Fuller,  1  McMull.  Eq.  27,  36  Am.  Dec.  290. 


699  PERSONAL  PROrERTY  SUBJECT  TO  EXECUTION.        §  148 

the  vendor  and  vendee/'*^  Texas,  ''^  Wisconsin,''^ 
and  Virginia/*^  also  support  the  rule  that  possession 
is  never  conclusive  evidence  of  fraud;  though  in  the 
last-named  state  the  contrary  doctrine  was  frequently 
and  uniformly  upheld  for  nearly,  if  not  fully,  half  a 
century.'^^*  In  Kansas  '^''  and  in  Oregon,^"*"  statutes 
have  been  enacted,  under  which  sales  of  personal  prop- 
erty, if  not  accompanied  by  actual  and  continued 
change  of  possession,  are  deemed  void  against  pur- 
chasers or  creditors  without  notice,  until  shown  to 
have  been  made  in  good  faith,  and  for  a  sufficient  con- 
sideration. Before  the  passage  of  this  statute  a  differ- 
ent rule  prevailed  in  the  last-named  state.''*''  Rhode 
Island  seems  to  have  adopted  a  rule  similar  to  that 
embraced  in  the  statutes  of  Kansas  and  Oregon.  The 
adoption,  however,  was  judicial  instead  of  legislative, 
the  supreme  court  of  the  state  having  accepted  as  law 
the  views  expressed  in  Parsons  on  Contracts. '^^ 

740  Pringle  v.  Ehame,  10  Eicb.  72.  G7  Am.  Dec.  569. 

T41  Bryant  v.  Kelton,  1  Tex.  415;  Morgan  v.  The  Republic,  2  Tex. 
279;  :MiIls  v.  Walton,  19  Tex.  271;  Van  Hook  v.  Walton,  28  Tex.  59; 
Thornton  v.  Tandy,  39  Tex.  545;  Scott  v.  Alford,  53  Tex.  82;  Till- 
man V.  Janks  (Tex.),  15  S.  W.  39. 

742  Smith  V.  Welch,  10  Wis.  91;  Grant  v.  Lewis,  14  Wis.  487,  SO 
Am.  Dec.  785;  Livingston  v.  Littell.  15  Wis.  221;  Bullis  v.  Borden, 
21  Wis.  13C;  Cook  v.  Van  Horn,  76  Wis.  520. 

743  Davis  V.  Turner,  4  Gratt.  422;  Forkner  v.  Stuart,  6  Gratt.  197. 

744  Clayborn  v.  Hill,  1  Wash.  (Va.)  177,  1  Am.  Dec.  452;  Alex- 
ander v.  Deneale,  2  Munf.  341;  Robertson  v.  Ewell,  3  Munf.  1; 
Glasscock  v.  Batton,  6  Rand.  78;  Taveuner  v.  Robinson,  2  Rob.  (Va.) 
280;  Thomas  v.  Soper,  5  Munf.  28:  Fitzhugh  v.  Anderson,  2  Hen.  & 
M.  289;  Williamson  v.  Farley,  Gilmer,  15;  Land  v.  Jeffries,  5  Rand. 
211;  Burchard  v.  Wright,  11  Leigh,  443;  Mason  v.  Bond,  9  Leigh, 
181,  33  Am.  Dec.  243. 

745  Wolfley  V.  Rising,  8  Kan.  .301. 

746  Moore  v.  Floyd,  4  Or.  101:  McCully  v.  Swackhamer,  6  Or.  43S. 
74T  Monroe  v.  Hussey,  1  Or.  ISS.  75  .\m.  Dec.  552. 

748  Anthony  v.  Wheatons,  7  R.  L  490. 


§  149       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  700 

§  149.  States  wherein  Want  of  Change  of  Possession 
is  Per  Se  Fraudulent. — We  shall  now  notice  the  deci- 
sions of  the  American  courts  which  are  opposed  to 
the  doctrines  mentioned  in  the  preceding  section. 
Hamilton  v.  Russell^'*'^  determined  in  the  supreme 
court  of  the  United  States,  is  a  leading  case.  Mr.  Chief 
Justice  Marshall  delivered  the  opinion  of  the  court,  as 
follows:  "On  the  4th  of  January,  1800,  Robert  Hamil- 
ton made  to  Thomas  Hamilton  an  absolute  bill  of  sale 
for  a  slave  in  the  bill  mentioned,  which,  on  the  14th  of 
April,  1801,  was  acknowledged  and  recorded  in  the 
court  of  the  county  in  which  he  resided.  The  slave 
continued  in  possession  of  the  vendor;  and,  some  short 
time  after  the  bill  of  sale  was  recorded,  an  execution 
on  a  judgment  obtained  against  the  vendor  was  levied 
on  the  slave,  and  on  some  other  personal  property, 
also  in  the  possession  of  the  vendor.  In  July,  1801, 
Thomas  Hamilton,  the  vendee,  brought  trespass 
against  the  defendant  Russell,  by  whose  execution  and 
by  whose  direction  the  property  had  been  seized;  and 
at  the  trial  the  counsel  for  the  defendant  moved  the 
court  to  instruct  the  jury  that,  if  the  slave  George  re- 
mained in  the  possession  of  the  vendor  by  the  consent 
and  permission  of  the  vendee,  and  if  by  such  consent 
and  permission  the  vendor  continued  to  exercise  acts 
of  ownership  over  him,  the  vendee  could  not  under 
such  circumstances  protect  such  slave  from  the  exe- 
cution of  the  defendant.  The  court  gave  the  instruc- 
tion required,  to  which  a  bill  of  exceptions  was  taken. 
The  act  of  assembly  which  governs  the  case  appears, 
as  far  as  respects  fraudulent  conveyances,  to  be  in- 
tended to  be  co-extensive  with  the  acts  of  13  and  27 
Elizabeth,  and  those  acts  are  considered  as   only   de- 

T49  1  Craiicb.  309. 


701  PERSONAL  PROPERTY  SUBJFXT  TO  EXECUTION.       §  149 

claratory  of  the  principles  of  the  common  law.  The 
decisions  of  the  English  judges,  therefore,  apply  to  this 
case. 

"In  some  cases  a  sale  of  a  chattel,  unaccompanied 
by  the  delivery  of  possession,  appears  to  have  been  con- 
sidered as  an  evidence  or  a  badge  of  fraud,  to  be  sub- 
mitted to  the  jury,  under  direction  of  the  court;  and 
not  as  constituting  in  itself,  in  point  of  law,  an  actual 
fraud  which  rendered  the  transaction  as  to  creditors 
entirely  void.  Modern  decisions  have  taken  this  ques- 
tion up  upon  principle,  and  have  determined  that  an 
unconditional  sale,  where  the  possession  does  not  ac- 
company and  follow  the  deed,  is,  with  respect  to  cred- 
itors, on  the  sound  construction  of  the  statute  of  Eliza- 
beth, a  fraud,  and  should  be  so  determined  by  the  court. 
The  distinction  they  have  taken  is  between  a  deed,  pur- 
porting on  its  face  to  be  absolute,  so  that  the  sepa- 
ration of  the  possession  from  the  title  is  incompati- 
ble with  the  deed  itself,  and  a  deed  made  upon  condi- 
tion which  does  not  entitle  the  vendor  to  the  imme- 
diate possession.  The  case  of  Edwards  v.  Harbin,  exec- 
utor of  Tempest  Mercer,  2  Term  Eep.  587,  turns  on  this 
distinction,  and  is  a  very  strong  case. 

"William  Tempest  Mercer,  on  the  27th  of  March, 
1786,  offered  to  the  defendant,  Harbin,  a  bill  of  sale 
of  sundi-y  chattels  as  security  for  a  debt  due  by  Mercer 
to  Harbin.  This  Harbin  refused  to  take,  unless  he 
should  be  permitted,  at  the  expiration  of  fourteen  days, 
if  the  debt  should  remain  unpaid,  to  take  possession 
of  the  goods,  and  sell  them  in  satisfaction  of  the  debt, 
the  surplus  money  to  be  returned  to  Mercer.  To  this 
Mercer  agreed,  and  a  bill  of  sale,  purporting  on  the 
face  of  it  to  be  absolute,  was  executed,  and  a  cork- 
screw delivered  in  the  name  of  the  whole.    Mercer  died 


§  149       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  702 

within  fourteen  days,  and,  immediately  after  their  ex- 
jtiration,  Harbin  took  possession  of  the  goods,  specified 
in  the  bill  of  sale,  and  sold  them.    A  suit  was  then 
brought    against   him  by  Edwards,    who    was  also  a 
creditor  of  Mercer,  charging  Harbin  as    executor    in 
his  own  wrong;  and  the  question  was,  whether  this 
bill  of  sale  was  fraudulent  and  void,  as  being  on  its 
face  absolute,  and  being  unaccompanied  by  the  deliv- 
ery of  possession.    It  was  determined  to  be  fraudulent; 
and  in  that  case  it  is  said  that  all  the  judges  of  Eng- 
land had  been  consulted  on  a  motion  for  a  new  trial  in 
the  case  of  Bamford  v.  Baron,  and  were  unanimously 
of  opinion  that  'unless  possession  accompanies  and  fol- 
lows the  deed,  it  is  fraudulent  and  void';  that  is,  un- 
less the  possession  remain  with  the  person  shown  by 
the  deed  to  be  entitled  to  it,  such  deed  is  void  as  to 
creditors  within  the  statutes.    This  principle  is  said  by 
Judge  Buller  to  have  been  long  settled,  and  never  to 
have  been  seriously  questioned.    He  states  it  to  have 
•  been  established  by  Lord  Coke,  in  2  Buls+rode,  so  far 
as  to  declare  that  an  absolute  conv        . .-  or  gift  of  a 
lease   for  years,   unattended    with    possession,   was 
fraudulent.    'But  if  the  deed  or  conveyance  be  condi- 
tional, then  the  vendor's  continuing  in  possession  does 
not  avoid  it,  because,  by  the  terms  of  the  conveyance, 
the  vendee  is  not  to  have  the  possession  till  he  has  per- 
formed the    condition.'     'And    that    case,'    continues 
Judge  Buller,  'makes  the  distinction  between  deeds  or 
bills  of  sale,  which  are  to  take  place  immediately,  and 
those  which  are  to  take  place  at  some  future  time.  For, 
in  the  latter  case,  the  possession  continuing  with  the 
vendor  till  such  future  time,  or  till  that  condition  be 
performed,  is  consistent  with  the  deed,  and  such  pos- 
session comes  within  the  rule  as   accompanying   and 


703     PERSONAL  PROPERTY  SUBJECT  TO  EX  ECU  HON.   §  U9 

following  the  deed.  That  case  has  been  universally 
followed  by  all  the  cases  since.'  'This,'  continues  the 
judge,  'has  been  argued  by  the  defendant's  counsel  as 
being  a  case  in  which  the  w^ant  of  possession  is  only 
evidence  of  fraud,  and  that  it  was  not  such  a  circum- 
stance, per  se,  as  makes  the  transaction  fraudulent  in 
point  of  law;  that  is  the  point  which  we  have  consid- 
ered, and  we  are  all  of  opinion  that  if  there  is  nothing 
but  the  absolute  conveyance,  without  the  possession, 
that  in  point  of  law  is  fraudulent.' 

''This  court  is  of  the  same  opinion.  We  think  the 
intent  of  the  statute  is  best  promoted  by  that  construc- 
tion; and  that  fraudulent  conveyances,  which  are  made 
to  secure  to  a  debtor  a  beneficial  interest  while  his 
property  is  protected  from  creditors,  will  be  most  ef- 
fectually prevented  by  declaring  that  an  absolute  bill 
of  sale  is  itself  a  fraud,  unless  possession  accompanies 
and  follows  the  deed."  The  principles  thus  announced 
and  adopted  have  been  reaffirmed  in  many  cases  in 
the  federal  courts.''^*^  The  general  rule,  that  an  abso- 
lute sale,  not  accompanied  and  followed  by  possession 
by  the  vendee  of  the  chattels  sold,  is  per  se  fraudulent, 
now  prevails  in  several  of  the  states.  In  siome  of  them 
it  is  subject  to  the  exception  stated  in  Hamilton  v. 
Russell,  in  favor  of  conditional  sales,  but  in  others  this 
exception  is  not  recognized.  In  another  section  we 
shall  refer  to  conditional  sales.  In  the  present  section 
we  shall  proceed  to  show  in  wiiat  states  the  rule  of 
Hamilton  v.  Russell  is  accepted  and  enforced  in  con- 

T50  Travers  v.  Ramsey,  3  Cranch  C.  C.  354;  Moove  v.  Ringgold. 
3  Cranch  C.  C.  434;  Hamilton  v.  Franklin,  4  Cranch  C.  C,  729 
Meeker  v.  Wilson,  1  Gall.  419;  Phettiplace  v.  Sayles,  4  Mason,  312 
D'Wolf  T.  Harris,  4  Mason,  515;  Merrill  v.  Dawson,  Hemp.  563 
Comly  V.  Fisher.  Taney.  121;  Allen  v.  Massey,  2  Abb.  CO.  But  see 
Warner  v.  Norton,  20  How.  448. 


§  149       PERSONAL  PROrERTY  SUBJECT  TO  EXECUTION.  704 

nection  with  absolute  sales.  In  California,  Colorado, 
North  Dakota,  South  Dakota,  and  Utah,  all  doubts 
were  avoided  by  clearly  incorporating  this  rule  in  their 
statutes,^^^  but  by  amendment  to  the  statutes  of  North 
Dakota,  enacted  in  1893,  the  want  of  a  change  of  pos- 
session creates  a  presumption  of  fraud,  which  may  be- 
removed  by  proving  that  the  sale  was  made  in  good 
faith,  and  without  any  intent  to  hinder,  delay,  or  de- 
fraud creditors,  purchasers,  or  incumbrancers."^^^  In 
Connecticut,  possession  by  the  vendor  has  always  been 
regarded  as  conclusive  evidence  of  fraud.'^^^  In  Dela- 
ware, the  statute  provides  that  in  a  bill  of  sale  of  chat- 
tels, the  title  shall  not  pass,  except  as  against  the  ven- 
dor, unless  possession  be  delivered  to  the  vendee  "as 
soon  as  conveniently  may  be"  after  the  sale.  Under 
this  act  sales  without  a  change  of  possession  are,  as 
against  creditors,  void.*^^*  In  Florida  and  Illinois,  the 
courts  have  coincided  with  the  views  expressed  in 
Hamilton  v.  Russell.'^^^    In  Iowa,  a  creditor  may  take 

751  Whitney  v.  Stark,  8  Cal.  514,  68  Am.  D--  ilodgkins  v. 
Hook,  23  Cal.  581;  Chenery  v.  Palmer,  6  Cal.  .O  Am.  Dec.  493; 
Stevens  v.  Irwin,  15  Cal.  503,  76  Am.  Dec.  500;  Bassinger  v.  Spang- 
ler,  9  Colo.  175;  Allen  v.  Steiger.  17  Colo.  5.52;  Conrad  v.  Smith,  (> 
N.  D.  337;  Schauer  v.  Alterton,  151  U.  S.  607;  Everett  v.  Taylor,  14 
Utah,  243. 

752  Conrad  v.  Smith,  6  N.  D.  337. 

753  Patten  v.  Smith,  5  Conn.  196;  Swift  v.  Thompson.  9  Conn.  63. 
21  Am.  Dec.  718;  Webster  v.  Peck.  31  Conn.  495;  Gaylor  v.  Hard- 
ing, 37  Conn.  508;  Hatstat  v.  Blakeslee,  41  Conn.  .301;  Calkins  v. 
LockM'ood,  17  Conn.  154,  42  Am.  Dec.  729;  Crouch  v.  Carrier,  16- 
Conn.  505,  41  Am.  Dec.  156;  Mead  v.  Noyes.  44  Conn.  487. 

754  Bowman  v.  Herring,  4  Ilarr.  (Del.)  458;  Taylor  v.  Richardson, 
4  Houst.  300. 

75f,  Gibson  v.  Love,  4  Fla.  217;  Sanders  v.  Pepoon,  4  Fla.  465: 
Thornton  v.  Davenport,  1  Scam.  296,  29  Am.  Dec.  358;  Rhines  v> 
Phelps,  3  C4ilm.  455;  Smith  v.  Hines,  10  Fla.  285;  Thompson  v. 
Yeck.  21  111.  73;  Dexter  v.  Parkins,  22  111.  143;  Ketchum  v.  Watson, 
24  111.  591;  Corgan  v.  Frew.  39  111.  31,  89  Am.  Dec.  286;  Allen  v.. 
Carr,  85  111.  389;  Ticknor  v.  McClelland,  84  111.  471. 


706  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  140 

on  execution  property  still  in  possession  of  the  vendor, 
unless  be  has  actual  notice  of  the  sale,  or  constructive 
notice  given  by  recording  the  bill  of  sale  as  required  by 
statute.'"'^^  The  decisions  made  in  Kentucky  are  so 
cited  by  Mr.  Parsons,  in  his  work  on  contracts,  as  to  in- 
dicate that  they  were  conflicting,  and  that  a  considera- 
ble portion  of  them  supported  the  doctrine  that  the  re- 
tention of  a  chattel  by  the  vendor,  after  its  absolute 
sale,  is  only  evidence  of  fraud.  Upon  examination,  the 
decisions  in  that  state  will  be  found  to  affirm,  in  the 
most  unequivocal  terms,  that  an  absolute  sale  of  per- 
sonal property,  unless  followed  by  the  delivery  of  pos- 
session to  the  vendee,  is  per  se  fraudulent  and  void, 
and  cannot  be  aided  by  proof,  showing  that  the  trans- 
action was  in  fact  in  good  faith  and  of  the  most  meri- 
torious nature.'^''  Nor  can  this  rule  be  dispensed 
with,  because  the  vendor  and  vendee  live  in  the  same 
bouse,'''***  nor  because  the  execution  creditor's  debt  ac- 
crued subsequently  to  the  sale.''^'*  But  where  the  sale 
is  not  absolute,  and  the  title  and  right  of  possession 
are  not  to  be  divested,  except  on  the  performance  of 
subsequent  acts,  the  retention  of  possession  by  the 
vendor  is  not  per  se  fraudulent,  because  not  inconsist- 

T6«  Miller  v.  Bryan,  3  Clarke,  .58;  Courtrialit  v.  Leonard.  11  Iowa, 
32;  Day  v.  Griffith,  15  Iowa,  104;  Prather  v.  Parlcor,  24  Iowa,  20; 
Hickox  V.  Buell.  51  la.  G55;  Smith  v.  Champney,  50  la.  174. 

757  Baylor  v.  Smither's  Heirs,  1  Litt.  105;  Goldbury  v.  May,  1  Litt. 
256;  Daniel  v.  Holland,  4  J.  J.  Marsh.  18;  Brummel  v.  Stockton,  3 
Dana,  134;  Anthony  v.  W^ade,  1  Bush.  110;  Miles  v.  Edelen,  1 
Duvall,  270;  Allen  v.  Johnson,  4  J.  J.  Marsh.  2.3.');  Dale  v.  Arnold, 
2  Bibb.  605;  Stephens  v.  Barnett,  7  Dana,  257;  Hinulley  v.  Webb,  3 
J.  J.  Marsh.  643,  20  Am.  Dec.  189;  Waller  v.  Todd,  3  Dana,  503,  28 
Am.  Dec.  94. 

758  Waller  v.  Cralle,  8  B.  Men.  11. 
»B»  Woodrow  V.  Davis,  2  B.  Mon.  298. 

Vol.  1.-45 


§  U9       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  706 

ent  with  the  contract.''*'^  In  Wash  v.  Medley,  1  Dana, 
269,  a  deed  of  slaves  was  made  by  one  member  of  a 
family  to  another,  but  was  succeeded  by  no  visible 
change  in  possession.  The  court  held  this  not  fraudu- 
lent per  se,  because  the  family  lived  together.  In  this 
respect,  this  decision  is  in  effect  overruled  by  the  sub- 
sequent cases  of  Waller  v.  Cralle,  8  B.  Mon.  11,  and 
Jarvis  v.  Davis,  14  B.  Mon.  529,  Gl  Am.  Dec.  166.  In 
Louisiana  the  retention  of  possession  ,by  the  vendor  is 
conclusive  evidence  of  fraud,  and  the  goods  may  be 
taken  under  execution  against  him.'^**^  The  same  rules 
which  we  have  stated  as  prevailing  in  Iowa  are  equally 
applicable  to  sales  of  chattels  in  Maryland.''*'^  :Mis- 
souri,  at  an  early  day,  was  on  this  subject  in  full  ac- 
cord with  the  decisions  of  the  federal  judiciary.''^* 
Subsequently,  this  state  by  statute  adopted  a  differ- 
ent rule;  ^^  but  still  later,  by  chapter  107,  section  10, 
of  statutes  of  1866,  the  legislature  declared  all  sales 
of  personal  proper-ty  void  as  to  creditors  unless  posses- 
sion was  taken  within  a  reasonable  time.  The  statute 
of  Nevada  and  the  decisions  made  under  it  are  in  con- 
sonance with  the  statute  and  decisions  in  California.''^^ 
"In  New  Hampshire  the  principle  appears  to  be  nearly 
the  same  as  in  the  federal  courts,  though  declared  in 

760  Baylor  v.  Smither's  Heirs,  1  Litt.  105;  Hundley  v.  Webb,  3 
J.  J.  Marsh.  643,  20  Am.  Dec.  ISO. 

761  Garritson  v.  Creditors,  7  La.  551;  Jorda  v.  Lewis,  1  La.  Anu. 
59;  Zacharie  v.  Rich,  14  La.  Ann.  433;  Lassiter  v.  Bussy,  14  La. 
Ann.  699;  Civil  Code,  sees.  1916,  1917. 

762  Bruce  v.  Smith,  3  Har.  &  J.  499;  Hambleton  v.  Hayward,  4 
Har.  &  J.  443;  Hudson  v.  Warner,  2  Har.  &  G.  416. 

763  Rocheblave  v.  Potter,  1  Mo.  561,  14  Am.  Dec.  305;  Foster  v. 
Wallace,  2  Mo.  231;  Sibley  v.  Hood,  3  Mo.  290. 

764  State  V.  Evans,  38  Mo.  150;  State  v.  Durant,  69  Mo.  .390. 
765Doak  V.  Brubaker,  1  Nev.  218;  Lavrrence  v.  Burnham,  4  Nev. 

361;  Gray  v.  Sullivan,  10  Nev.  416. 


707  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  149 

a  form  somewhat  different;  in  fact,  instead  of  the  rule 
of  the  federal  courts  being  established,  the  principle 
and  reason  on  which  the  rule  is  based  are  used  as 
guides."  ■""« 

Hence,  while  the  courts  of  this  state  have  hesitated 
to  declare  that  the  retention  of  possession  by  the 
vendor  is  conclusive  evidence  of  fraud,  they  have  at 
the  same  time  held  it  conclusive  evidence  of  a  secret 
trust,  unless  explained.  What  explanation  might  suf- 
fice to  overcome  the  presumptive  evidence  of  fraud, 
they  have  nowhere  clearly  indicated.  It  appears,  how- 
ever, that  proof  of  the  actual  good  faith  of  the  trans- 
action will  not  accomplish  this  purpose,  "but  a  sat- 
isfactory reason  must  be  shown  for  allowing  the  ven- 
dor to  retain  the  possession  of  the  goods,  else  it  will 
be  presumed  that  it  was  intended  he  should  have  the 
use  of  them.  What  would  be  a  sufficient  explanation 
of  the  possession,  as  a  general  principle,  has  not  been 
determined  in  this  state."  ''**''  The  early  cases  in  New 
York  have,  through  the  construction  given  to  a  sub- 
sequent statute,  ceased  to  control  the  law  of  that  state; 
but  they  will  be  alluded  to  here  for  the  purpose  of 
showing  the  interpretation  they  gave  to  the  statute  of 
13  Elizabeth  while  it  was  still  in  force.  In  the  case  of 
Sturtevant  v.  Ballard,'*^*  decided  in  1S12,  Kent,  chief 
justice,  delivered  the  opinion  of  the  court,  saying:  "The 
facts  lie  in  a  narrow  compass.    Meeker,  on  the  2d  of 

766  Smith's  Lead.  Cas.  63.  See  Havpn  v.  Low,  2  N.  H.  13,  9  Am. 
Dec.  25;  Coburn  v.  riokering,  3  N.  H.  415.  14  Am.  Dec.  375;  Trask  v. 
Bowers,  4  N.  H.  309;  Clark  v.  Morse,  10  N.  H.  239:  Kendall  v.  Fitts, 
2  Fost.  1;  raiil  v.  Crookor.  8  N.  H.  288;  Parker  v.  Pattee,  4  N.  H. 
176;  Doucet  v.  Richardson  (N.  H.).  29  Atl.  G35. 

767  Putnam  v.  Osgood.  52  N.  H.  148;  Coolidce  v.  Melvin,  42  N.  H. 
510;  French  v.  Hall,  9  N.  H.  137,  32  Am.  Dec.  341. 

768  9  Johns.  337,  6  Am.  Dec.  281. 


§  U9   PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.     708 

August,  1810,  obtained  a  judgment  against  Holt.  On 
the  29th  of  August,  Holt  sold  his  goods  and  chattels 
(being  a  quantity  of  blacksmith's  tools)  to  the  plain- 
tiffs, partly  for  cash  and  partly  to  satisfy  a  debt  due 
to  them.  The  articles  were  specified  in  a  bill  of  sale, 
and  the  bill  contained  an  agreement  that  Holt  was 
to  retain  the  use  and  occupation  of  the  goods  for  the 
term  of  three  months.  Just  before  the  expiration  of 
the  term,  and  while  the  goods  continued  in  the  pos- 
session of  Holt,  they  were  seized  by  the  defendant,  as 
sheriff,  by  virtue  of  an  execution  issued  on  the  judg- 
ment in  favor  of  Meeker.  The  question  arising  upon 
this  case  is,  whether  the  sale  to  the  plaintiffs  under 
the  above  circumstances  was  valid  in  law  as  against 
the  judgment  creditor. 

"As  between  the  partie?  to  it,  a  sale  of  chattels  un- 
accompanied by  possession  may  be  valid.  It  may  even 
be  valid  as  against  a  creditor  who  was  knowing  and 
assenting  to  the  sale.  It  was  so  ruled  in  Steele  v. 
Brown  and  Pary,  1  Taunt.  381;  but  this  is  not  such  a 
ease.  Here  was  a  judgment  creditor  affected  by  the 
sale. 

"The  statute  of  13  Elizabeth,  and  which  has  been 
re-enacted  with  us  (Sess.  10,  c.  44,  sec.  2),  makes  void 
all  grants  and  alienations  of  goods  and  chattels  made 
with  intent  to  delay,  hinder,  and  defraud  creditors. 
This  statute,  as  it  has  frequently  been  observed  by  the 
English  judges,  was  declaratory  of  the  common  law; 
and  the  true  principles  of  law  in  relation  to  such  sales 
are  to  be  found  in  a  series  of  judicial  decisions,  both 
before  and  since  the  statute  of  Elizabeth;  the  great 
point  is,  whether  the  fact  of  permitting  the  vendor  to 
retain  possession  of  the  goods  did  not  render  this  sale 
fraudulent  in  law,   notwithstanding   such   permission 


709     PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.   §  U9 

was  inserted  in  the  deed  as  a  conditiuu  of  the  contract. 
If  there  had  been  no  such  insertion,  but  the  sale  had 
been  absolute  on  the  face  of  it,  and  possession  had  not 
immediately  accompanied  and  folhtwed  the  sale,  it 
would  have  been  fraudulent  as  against  creditors;  and 
the  fraud  in  such  case  would  have  been  an  inference 
or  conclusion  of  law,  which  the  court  would  have  been 
bound  to  pronounce.  This  is  a  well-settled  principle 
in  the  English  courts.  It  is  to  be  met  with  in  a  vari- 
ety of  cases,  and  especially  in  that  of  Edwards  v.  Har- 
bin, 2  Term  Kep.  587;  and  it  has  been  recognized  and 
adopted  by  some  of  the  most  respectable  tribunals  in 
this  country.  But  it  by  no  means  follows  that  such  a 
sale,  with  such  an  agreement  attached  to  it  and  ap- 
pearing on  the  face  of  the  deed,  is  necessarily  valid. 
There  must  be  some  sutiicient  motive,  and  of  which 
the  court  is  to  judge,  for  the  nondelivery  of  the  goods, 
or  the  law  will  still  presume  the  sale  to  have  been  made 
with  a  view  to  'delay,  hinder,  or  defraud  creditors.' 
Delivery  of  possession  is  so  much  of  the  essence  of  a 
sale  of  chattels,  that  an  agreement  to  permit  the  ven- 
dor to  keep  possession  is  an  extraordinary  exception 
to  the  usual  course  of  dealing,  and  requires  a  satisfac- 
tory explanation.  This  was  a  voluntary  sale  made  by 
the  debtor  soon  after  the  judgment  against  him,  and 
made  to  a  creditor,  partly  for  cash  and  partly  to  sat- 
isfy an  old  debt;  and  why  was  the  sale  made  three 
months  before  possession  was  to  be  delivered,  if  it  was 
not  to  defeat  the  intermediate  execution  of  the  judg- 
ment creditor?  There  is  no  assignable  reason  appear- 
ing for  the  arrangement,  and  the  time  of  delivery 
might  have  been  postponed  for  three  years  as  well  as 
for  three  months.  The  instances  in  which  a  sale  of 
chattels,  unaccompanied  with  delivery,  has  been  held 


§  149       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  710 

valid,  are  all  founded  upon  special  reasons,  whicli  have 
no  application  to  this  case. 

"The  general  principle  involved  in  this  discussion 
is  extremely  important  to  the  commercial  interests  of 
the  community,  and  to  confidence  and  integrity  in  deal- 
ing. The  law,  in  every  period  of  its  history,  has  spoken 
a  uniform  language,  and  has  always  looked  with  great 
jealousy  upon  a  sale  or  appropriation  of  goods  without 
parting  with  the  possession,  because  it  forms  so  easy 
and  so  fruitful  a  source  of  deception.  Lord  Kenyon 
said  he  lamented  that  it  w^as  ever  decided  that  the 
possession  and  apparent  ownership  of  personal  prop- 
erty might  be  in  one  person,  and  the  title  in  another, 
and  he  thought  it  would  have  been  better  for  the  pub- 
lic if  the  possession  of  such  property  (exoept  in  the  case 
of  factors)  were  to  carry  the  title.  The  value  of  the 
principle,  and  its  necessity,  were  perceived  and  felt  as 
early  as  the  age  of  Glanville;  for  he  observed,  when 
speaking  of  pledges,  that  ^when  a  thing  is  agreed  to 
be  placed  in  pledge,  by  a  debtor  to  a  creditor,  and  de- 
livery does  not  follow,  it  becomes  a  question  what  shall 
be  done  for  the  creditor  in  that  case,  since  the  same 
thing  may  be  pledged  to  other  creditors,  both  before 
and  after.  And  it  is  to  be  observed  that  the  court  will 
not  regard  such  private  arrangements,  nor  intermed- 
dle therewith,  or  sustain  a  suit  thereon.'  This  was 
acknowledging  the  mischief,  and  admitting  the  rem- 
edy, under  the  same  enlightened  view  of  public  policy 
and  private  interest  which  some  of  the  decisions  of 
Lord  Mansfield  announce  at  the  period  of  the  full 
growth  and  maturity  of  the  commercial  system.  There 
is  also  a  case  in  the  Book  of  Assizes,  f.  101,  pi.  72,  22 
Edw.  III.,  which  is  much  to  the  present  purpose.  An 
action  of  trespass  was  brought,  for  wrongfully  taking 


711  PERSONAL  TROPERTY  ^SUBJECT  TO  KXl-X'UTION.        §  14'J 

some  cattle,  and  the  jury  found  that  the  defendant  had 
received  from  the  bailiff  the  boasts,  on  an  execution 
which  had  issued  for  him  against  one  B,  and  that  the 
beasts  belonged  to  B  at  the  time  of  the  judgment,  and 
that  he  afterward,  by  deed,  g-ave  them  to  the  plaiutifl', 
to  delay  the  execution;  and  the  jury,  being  required 
by  the  court  to  say  who  took  the  profits  of  the  same 
beasts  in  the  meantime,  they  answered  that  the  donor 
did.  Then  Thorpe,  J.,  declared:  'I  conceive  the  gift 
to  be  of  no  value,  and  I  hold  that  he  to  whom  such 
gift  was  made  was  only  keeper  of  the  beasts  to  the  use 
of  the  other,  because  there  was  fraud,  etc.,  for  other- 
wise a  man  could  never  have  execution  of  chattels.' 

"We  may,  therefore,  safely  conclude  that  a  voluntary 
sale  of  chattels,  with  an  agreement,  either  in  or  out  of 
the  deed,  that  the  vendor  may  keep  possession,  is,  ex- 
cept in  special  cases  and  for  special  reasons,  to  be 
shown  to  and  approved  of  by  tlie  court,  fraudulent  and 
void  as  against  creditors.  This  is  clearly  not  one  of 
those  cases,  and  the  defendant  is,  therefore,  entitled  to 
judgment." 

The  doctrines  thus  announced  in  the  case  of  Sturte- 
vant  V.  Ballard  were  reaffirmed  on  several  subsequent 
occasions  in  the  same  state;  and  there  is  no  doubt  that 
its  courts  were  fully  committed  to  the  rules  of  deci- 
sion set  forth  in  Edwards  v.  Harbin  and  Hamilton  v. 
llusselU^**    In   Pennsylvania  '^'^^  and   in   Yermout,'^''^ 

769  See  Jenniugs  v.  Carter.  2  Wend.  440.  20  Am.  Dee.  G35;  Divver 
V.  McLaufrliliu.  2  "VVeud.  GOG,  20  Am.  Dec.  055;  Archer  v.  Hubbell, 
4  WoiKl.  514;  Doane  v.  Edd.v,  10  Weml.  522;  Stevens  v.  Fisher,  19 
Wend.  181. 

770  Cunninjiham  v.  Neville,  10  Sergr.  &  U.  201;  Clow  v.  Woods.  5 
Serg.  &  R.  275,  9  Am.  Dec.  340;  Brady  v.  Haines,  IS  Pa.  St.  113; 
Born  V.  Shaw.  20  Pa.  St.  288,  72  Am.  Doc.  033;  Milne  v.  Henry,  4t 
Pa.  St.  352;  Dewart  v.  Clement,  48  I'a.  St.  413;    Davis  v.  Bigler,  62 


§  150       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  712 

llie  rule  that  the  retention  of  possession  by  the  vendor, 
after  an  absolute  siale,  leads  to  a  legal  and  conclusive 
presumption  of  fraud,  has  always  been  sustained. 

§  150.  Recapitulation  of  Authorities  in  Reference  to 
Effect  of  Want  of  Change  of  Possession.  —From  a  recapi- 
tulation of  the  authorities,  cited  in  the  last  two  sec- 
tions, it  will  be  seen  that  in  the  states  of  Alabama, 
Arkansas,  Georgia,  Indiana,  Kansas,  Maine,  Massa- 
chusetts, Michigan,  Mississippi,  Nebraska,  New  Jer- 
sey, New  York,  North  Carolina,  Ohio,  Oregon,  Rhode 
Island,  South  Carolina,  Tennessee,  Texas,  Virginia, 
and  Wisconsin,  the  question  of  fraud  or  no  fraud  is 
clearly  one  for  the  decision  of  the  jury.  Of  these 
states,  Indiana,  Kansas,  Nebraska,  New  York,  Ore- 
gon, and  Wisconsin  have  settled  the  question  by  stat- 
ute. But  in  saying  that  the  question  of  fraud  or  no 
fraud  is  one  for  the  jury,  we  must  not  be  understood 
as  implying  that  the  jury  are  at  liberty  to  disregard 
the  fact  that  the  vendor  retains  possession  after  his 
sale.  If  the  sale  be  absolute  in  terms,  or  such  that 
the  continuing  possession  of  the  vendor  seems  to  be 
inconsistent  with  the  alleged  transfer  of  title,  then 
such  possession  is  everywhere  regarded  as  a  badge  of 
fraud.  This  badge  is  not  a  mere  suspicious  circum- 
tance;  it  is  prima  facie  evidence.     Standing  alone,  it 

Pa.  St.  242.  1  Am.  Rep.  393;  Dick  v.  Lindsay.  2  Orant  Cas.  431; 
Gorman  v.  Cooper,  29  Leg.  Int.  372;  Streeper  v.  Eclvart,  2  Wliart. 
302.  30  Am.  Dec.  258;  Forsytli  v.  Mattliews.  14  Pa.  St.  100,  .^3  Am. 
Dec.  522;  Stephens  v.  Gifford,  137  Pa.  St.  219,  21  Am.  St.  Rep.  868; 
Sweigert  v.  Fiuley,  144  Pa.  St.  266. 

771  Moore  V.  Kelley,  5  Vt.  34,  26  Am.  Dec.  283:  Farnsworth  v. 
Shepard,  6  Vt.  521;  Hart  v.  F.  &  M.  Banli,  33  Vt.  252;  Sleeper  v. 
Pollard,  28  Vt.  709,  67  Am.  Dec.  741;  Batchelder  v.  Carter,  2  Vt. 
168,  19  Am.  Dec.  707;  Hildreth  v.  Fitts,  53  Vt.  684;  Weeks  v.  Pres- 
<-ott,  53  Vt.  57. 


713.  PERSONAL  PRJIEUTY  SUBJECT  TO  EXECUTION.       §  150 

is  conclusive  against  the  vendee.  lie  cannot  prevail 
against  a  subsequent  purchaser,  nor  against  a  creditor 
of  the  vendor,  until  he  has  rebutted  the  i)resuniption 
of  fraud,  arising  from  his  want  of  possession.  The 
onus  of  proof  is  upon  him.  lie  must  show  clearly,  to 
the  satisfaction  of  the  jury,  that  his  purchase  was  made 
in  good  faith,  and  without  any  intention  to  delay  or  de- 
fraud creditors.  What  evidence,  on  the  part  of  the 
vendee,  may  operate  to  repel  the  presumption  arising 
from  his  want  of  possession,  cannot  be  stated  with  any 
degree  of  cei-tainty.  As  the  question  is  one  of  fact,  evi- 
dence sufficient  to  convince  one  jury  of  the  gO'Od  faith 
of  the  transaction  might  produce  no  such  effect  on  the 
minds  of  another  jury.  But  if  the  vendee  does  not  pw- 
duce  some  evidence,  tending  to  explain  why  he  did  not 
assume  possession,  and  to  show  the  good  faith  of  his 
alleged  purchase,  the  presumption  against  him  be- 
comes conclusive.''"  The  court,  in  such  case,  should 
instruct  the  jury  to  find  in  favor  of  the  creditor  of  the 
vendor,  and  should  set  aside  its  verdict,  and  grant  a 
new  trial,  in  case  it  disregards  such  instruction.  In 
New  Hampshire,  while  the  general  rule  seems  to  pre- 
vail that  possession  by  the  vendor  is  ncit  conclusive 
against  the  vendee,  yet  such  strong  proof  Is  required 
to  rebut  the  presumption  arising  from  such  possession, 

772  Ball  V.  Loomis,  29  N.  Y.  412;  Mauklin  v.  Mitchell,  14  Ala.  S14; 
Bank  of  Mobile  v.  Borland,  5  Ala.  539;  Beers  v.  Dawson  8  Ga.  5.56; 
Teck  V.  Land.  2  Kelly,  1,  40  Am.  Doc.  HGS:  Kane  v.  Drake.  27  Ind. 
;;0;  Nutter  v.  Harris,  9  Ind.  88;  Keller  v.  Blanchard,  19  La.  Ann. 
r>3;  Kuykendall  v.  McDonald.  15  Mo.  41G,  57  Am.  Dec.  212:  Ilart- 
raan  v.  Vogel,  41  Mo.  570;  Kendall  v.  Fitts,  2  Fost.  1;  Orubbs  v. 
Oreer,  5  Cold.  IW);  McQuinnay  v.  Hitchcock,  8  Tex.  33;  Curd  v. 
Miller,  7  Gratt.  185;  Brooks  v.  Powers,  15  Mass.  244.  8  Am.  Dec.  99, 
IJImer  v.  Hills,  8  Greenl.  326;  Young  v.  Tate.  4  Yerjr.  164;  Fleming 
V.  Tn^vnsend,  6  Ga.  103,  50  Am.  Dec.  31S;  Siedenbach  v.  Reilly,  111 
N.  Y.  5G0. 


§  151        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  714 

tliat,  in  its  practical  effect,  the  law  of  that  state  ap- 
proaches more  nearly  to  the  law  of  Hamilton  v.  Eus- 
sell  than  to  the  opposite  line  of  decisions.  In  the  fed- 
eral courts,  and  in  the  courts  of  California,  Connec- 
ticut, Delaware,  Florida,  Illinois,  Iowa,  Kentucky, 
Louisiana,  Maryland,  Missouri,  Nevada,  rcimsylvania, 
and  Vermont,  the  possession,  continuing  in  the  vendor, 
is,  under  ordinary  circumstances,  treated  as  fraudu- 
lent per  se.  For  the  guidance  of  judgment  creditors 
in  the  states  last  named,  we  shall  endeavor  to  show — 
1.  In  what  cases  a  change  of  possession  may  be  omit- 
ted; 2.  What  constitutes  a  sufficient  change  of  posses- 
ion, where  such  change  cannot  with  safety  be  omit- 
ted; 3.  When  the  change  must  commence;  and  4.  How 
long  it  must  continue. 

§  151.  Absolute  Transfers,  in  Which  No  Change  of 
Possession  need  be  iViade. — The  cases  in  which  the  in 
terests  of  a  vendee  are  not  placed  in  jeopardy  by  his 
failure  to  assume  possession  of  the  chattels  purchased 
may  be  divided  into  three  classes.  In  the  first  class 
are  the  cases  in  which  the  necessity  for  a  change  of 
possession  is  removed  by  the  nature  of  the  transfer. 
The  second  class  embraces  cases  in  which  the  chang(^ 
of  possession  may  be  dispensed  with,  owing  to  the  char- 
acter of  the  property.  While,  in  the  third  class,  an^ 
those  cases  in  which  the  nature  of  the  transfer  and 
the  character  of  the  property  would  both,  in  ordinary 
circumstances,  require  a  change  of  possession;  but 
something  in  the  situation  of  the  property,  at  the  tum^ 
of  the  sale,  renders  a  change  in  its  possession  unnec- 
essary or  impossible.  The  cases  of  the  first  class  may 
again  be  subdivided  into  absolute  transfers,  ainl  trans- 
fers which  are  not  so  absolute  in  their  nature,  that  the 


715  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  151 

continued  possession  of  the  vendor  is  inconsistent  with 
the  terms  and  purposes  of  the  transfer.  In  the  states 
in  which  the  retention  of  possession  by  the  vendor  pro- 
duces a  conclusive  presumption  of  fraud,  perhaps  the 
only  well-established  exceptions,  in  cases  of  absolute 
sales,  arising  from  the  nature  of  the  transfer,  are  in 
cases  of  marriage  settlements,"'^  and  cases  where  the 
property  of  a  defendant  is  sold  under  an  execution 
or  other  legal  process  against  him.  "The  notoriety  of 
a  public  sale,  which,  by  giving  notice  to  the  public 
that  the  title  has  passed  out  of  the  former  owner,  and 
thereby  prevents  him  from  obtaining  a  delusive  credit, 
from  the  apparent  ownership  of  property,  which  be- 
longs to  another,  creates  a  distinction  between  public 
and  private  sales,  where  there  is  no  change  of  posses- 
sion, as  to  the  rights  of  creditors."  ''^  ''Ivetention  of 
possession  by  the  former  owner  of  a  chattel  sold  at 
sheriff's  sale  is  not  an  index  of  fraud,  because  the  sale  is 
not  the  act  of  the  person  retaining,  but  of  the  law,  and 
because  a  judicial  sale,  being  conducted  by  tlie  sworn 
officer  of  the  court,  shall  be  deemed  fair  till  it  is  proved 
otherwise.  It  may,  like  a  judgment,  be  shown  to  be 
collusive  and  fraudulent  in  fact;  but  the  presumption 
of  the  law  is  favorable  to  it  in  the  first  instance.  A 
chattel  thus  purchased,  then,  may  safely  be  left  in  the 
possession  of  the  former  owner  on  any  contract  of  bail- 
ment that  the  law  allows  in  any  other  case."  '"'^ 

TT3  Lniidn  v.  McMnllin.  40  Ta.  St.  20:  rimrlton  v.  Gardner.  11 
Leigl).  202;  Cadogan  v.  Keunett,  CoAvp.  432;  Arundel  v.  Phipp-s,  10 
Ves.  ]?,0. 

774  Simorson  v.  Bank,  12  Ala.  213. 

775  Matteucci  v.  Whelan.  123  Cal.  312,  T<i  Am.  St.  Rcj).  tiO:  My- 
ers V.  Harvey,  2  Pen.  &  W.  481,  23  Am.  Doc.  00;  Bisbing  v.  Third 
Nat.  Bank.  93  Pa.  St.  70.  39  Am.  Rep.  72(i:  Ilnoblcr  v.  Smitli. 
62  Conn.  183.  .36  Am.  St.  Rep.  337.  Tho  question  wlu>tlior  a  sale 
under  execution  is  subject  to  the  general  rule  rcvjuiring  a  change  of 


§  151        PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  716 

It  seems  to  be  almost  universally  conceded  that  when 
a  stranger  to  the  writ  purchases  and  pays  for  property 
at  an  execution  sale,  the  fact  that  he  does  not  choose 

possession  to  accompany  a  sale  of  chattels  Avas  considered  in  this 
case,  and  the  conclusions  of  the  court  announced  as  follows:  "That 
it  is  not  within  the  letter  of  the  rule  is  evident,  since  the  retention 
of  possession  is  not  hy  the  vendor,  the  transfer  of  title  being  In 
iiivitum.  and  by  operation  of  law.  Nor  does  it  seem  to  ns  to  be  any 
more  within  the  spirit.  It  is  a  judicial  sale,  conducted  under  and 
by  virtue  of  a  lawful  precept  by  an  officer  of  the  court.  And  while 
it  might,  like  a  judgment,  be  shown  to  be  collusive  and  fraudulent 
in  fact,  it  hardly  seems  in  consonance  with  the  well-established 
and  ordinary  presumptions  attaching  to  official  proceedings  to  pre- 
sume at  all,  and  much  less  conclusively,  as  a  matter  of  law,  that 
it  is  so.  Such  presumption  as  there  may  be  ought  rather  to  be 
favorable  to  it  than  otherwise  in  the  first  instance.  Of  course,  how- 
over,  to  be  so,  the  levy  and  sale  must  be  proceeded  with  in  all  re- 
spects in  conformity  to  the  requirements  of  law.  And  it  is  entirely 
consistent  with  this  view  to  hold,  as  we  do,  that  if,  as  in  this  case, 
the  execution  creditor  is  himself  the  purchaser,  and  if  he  allow  the 
I)roperty  to  remain  in  possession  of  the  dei)tor  after  the  sale  on 
execution,  such  conduct  would  raise  an  inference  against  the  valid- 
ity of  the  transaction  which  it  would  be  incumbent  upon  him  to 
overcome  by  proof  that  his  judgment  was  for  an  honest  debt,  and 
that  there  was  no  collusion  between  him  and  his  debtor  to  cheat 
or  defraud  other  creditors  of  the  debtor.  And  this  is  what  the  judge 
of  the  court  below  correctly  held,  for  he  said  to  the  jury  that  it  was 
necessary  that  the  property  should  be  'taken  on  execution,  and  sold 
at  public  auction,  after  compliance  with  all  legal  formalities';  that 
the  jury  must  find  from  the  evidence  'that  the  property  in  question 
was  duly, and  legally  attached  by  the  plaintiff  in  a  suit  l>rought  by 
him  against  Alfred  Teweles  and  wife;  that  the  plaintiff  recovered 
judgment  In  the  suit  against  them;  that  execution  was  issued  in 
the  case,  and  that  the  property  was  sold  on  execution  to  the  plain- 
tiff, he  being  the  highest  bidder,  such  proceedings  being  had  in 
good  faith,'  and  that  'the  judgment  of  the  plnintiff  against  said 
Alfred  Teweles  and  wife  was  obtained  without  fraud,  for  an  honest 
debt,  and  the  property  was  honestly  and  fairly  sold  to  the  plaintiff 
on  an  execution  in  said  case,  having  been  legally  levied  upon, 
posted,  and  advertised.'  Indeed,  although,  as  has  been  stated,  this 
precise  question  in  this  precise  form  has  not  beon  passed  upon  by 
iliis  court  before,  it  may  be  determined  by  the  ap])lication  of  the 
principle  stated  by  Loomis,  J.,  in  delivering  Ihe  opinion  of  this 
court  in    Pease  v.  Odenkirchen,  42    Conn.  424.     It  was    there  said: 


717  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  151 

to  remove  it  from  the  control  of  the  defendant, 
neither  renders  the  sale  fraudulent  per  se,  nor,  unless 
connected  with  other  circumstances  of  a  suspicioua 
character,  creates  any  presumption  against  its  giood 
faith.'^'^"    But  when  the  plaintiif  in  execution  becomes 

'The  doctrine  of  the  common  law,  as  held  with  great  rigor  in  this 
state,  is  that  contiuuod  possession  by  the  vendor  after  a  sale  of  per- 
sonal property  raises  a  presumption  of  fraud,  which  cannot  be  re- 
pelled by  any  amount  of  evidence  showing  the  transaction  to  be 
honest  and  for  a  valuable  consideration.  But  there  may  be  a  legal 
excuse  for  retention  of  possession,  and  where  the  facts  and  circum- 
stances amount  to  a  presumption  of  law  that  the  retention  of  pos- 
session by  the  vendor  is  consistent  with  the  sale,  the  presumption 
of  fraud  is  overcome.  In  Osborne  v.  Tuller,  14  Conn.  529,  it  was 
held  that  a  valid  assignment  for  the  benefit  of  creditors,  under  the 
statute  of  1828.  was  a  sufficient  legal  excuse  for  the  retention  of 
possession  by  the  assignor.'  And  a  reference  to  the  case  cited  (Os- 
borne V.  Tnttle,  14  Conn.  529),  and  to  the  case  of  Strong  v.  Car- 
rier. 17  Conn.  319.  to  the  same  purport,  will  more  clearly  illustrate 
the  meaning  of  Judge  Loomis  in  the  quotation  made.  In  those 
cases  this  court  all  fully  established  the  limitation  which  we  have 
given,  and  which  the  court  below  distinctly  I'ecognized  and  stated, 
saying  in  Strong  v.  Carrier,  17  Conn.  319:  'If  the  assignee  permitted 
the  assignor  to  hold  himself  out  to  the  world  as  the  owner  of  the 
assigned  estate,  so  as  to  furnish  evidence  that  the  assignee  con- 
sidered the  assignment  a  mere  pretense  and  not  to  be  followed  up. 
this  would  be  such  evidence  of  fraud  as  to  subject  the  assignment 
to  the  ordinary  consequences  of  ordinary  sales  in  which  there  has 
been  no  change  of  possession.'  To  use  another  form  of  statement, 
it  would  be  substituting  in  such  cases  a  rebuttable  inference  of 
mala  fides  for  the  conclusive  presumption  of  fraud  which  arises  in 
case  of  ordinary  sales  unaccompanied  by  a  transfer  of  possession."' 
7T6  Kidd  V.  Rawlinson,  2  Bos.  &  P.  59;  3  Esp.  52;  Abney  v.  Kings- 
land,  10  Ala.  355,  44  Am.  Dec.  491;  Latimer  v.  Batson,  7  Dowl.  &  K. 
106;  Anderson  v.  Brooks.  11  Ala.  953;  Stone  v.  "Waggoner,  3  Eng. 
204;  Perry  v.  Foster,  3  Ilarr.  (Del.)  293;  Pennington  v.  Chandler,  5 
Harr.  (Del.)  394;  Greathouse  v.  Brown,  5  T.  B.  Mon.  280,  17  Am. 
Dec.  67;  Miles  v.  Edelen.  1  Duvall,  270;  Walter  v.  Gernant.  13  Pa. 
St.  515.  53  Am.  Dec.  491;  Dick  v.  Lindsay,  2  Grant  Cas.  431;  Poole 
V.  Mitchell.  1  Hill  (S.  C).  404;  Guignard  v.  Aldrich.  10  Rich.  Eq. 
253;  Coleman  v.  Bank  of  Hamburg,  2  Strob.  Eq.  285.  49  Am.  Dec. 
671;  Boardman  v.  Keeler.  1  Aik.  158.  15  Am.  Dec.  670;  Dick  v. 
Cooper,  24  Pa.  St.  217,  64  Am.  Dec.  652;  Garrett  v.  Rhame,  9  Rich. 


§  151       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  718 

the  purchaser,  some  of  the  American  cases  have  coq- 
sidered  that  the  necessity  for  a  change  of  possession 
is  as  imperative  as  though  the  sale  were  voluntary;  ^^ 
but  in  England  the  question  has  been  determined 
otherwise/^**  We  apprehend  that  there  can  be  no  well- 
founded  distinction  between  a  purchase  by  the  plain- 
tiff and  a  purchase  by  a  stranger  to  the  execution,  un- 
less the  circumstances  of  the  sale,  taken  in  connection 
with  the  continued  possession  of  the  defendant,  pro- 
duce the  conviction  that  the  writ  was  employed  in  bad 
faith,  for  the  purpose  of  withdrawing  the  property 
from  the  reach  of  other  creditors,  without  affecting 
the  defendant's  beneficial  interest  therein. 

There  is  some  doubt  as  to  the  true  grounds  upon 
which  the  exception  in  favor  of  sales  under  execution 
rests.  Some  contend  that  the  notoriety  of  the  sale  fur- 
nishes a  sufficient  protection  from  fraud,  and  gives 
ample  notice  of  the  change  of  title.  Others  insist  that 
the  exception  is  justified  by  the  fact  that  the  sale  is 
involuntary,  and  is  made  by  the  officers  of  the  law.  If 
the  notoriety  of  the  sale  furnishes  a  sufficient  reason 
for  this  exception,  then  it  wonld  seem  that  the  rule 
ought  to  extend  to  other  sales  attended  with  equal 
publicity.    Where  debtors  make  assignments  of  per- 

407,  67  Am.  Dec.  557;  McMichael  v.  McDermott,  17  Pa.  St.  So3,  55 
Am.  Dec.  560.  The  principle  also  extends  to  sales  under  distress 
for  rent.  Waters  v.  McClellan,  4  Dall.  208.  In  New  York,  a  pur- 
chase by  a  stranger  to  the  execution  was  deemed  fraudulent,  where 
for  more  than  a  year  he  allowed  the  defendant  to  retain  possession 
and  deal  with  the  goods  as  his  own.  Dicl^enson  v.  Cook,  17  Johns. 
3,32.  But  where  there  is  no  apparent  intent  to  defraud  creditors, 
the  purchaser  may,  in  that  state,  leave  the  goods  with  the  defend- 
ant.   Mclnstry  v.  Tanner,  9  Johns.  135. 

77T  Williams  v.  Kelsey,  6  Ga.  365;  Farrington  v.  Caswell,  15  Johns. 
430;  Gardenier  v.  Tubbs,  21  Wend.  169.  But  see  Floyd  v.  Goodwin, 
8  Yerg.  484,  29  Am.  Dec.  130. 

778  W'atkins  v.  Birch,  4  Taunt.  823. 


719  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.       §  IJl 

sonal  property  for  the  benefit  of  their  creditors,  and 
the  assignees  thereafter,  in  pursuance  of  public  notice, 
sell  the  property  at  auction,  the  purchasers   may,  ac- 
cording to  a  decided  preponderance  of  the  authorities, 
safely  allow  the  goods  to  remain  with  the  assignors,'''^ 
But   in  Vermont  the  authority  of   these  cases   is  de- 
nied,'"'^" and  the  exception  which  we  are  discussing  is 
confined  to  purchases  at  sales  made  under  legal  pro- 
cess.    Hence,  where  a  constable  sold  i^roperty  by  con- 
sent of  the  defendant,  not  having  legal  process  in  hi:> 
hands,  the  supreme  court,  by  Iledfield,  J.,  said:  "It  is 
at  present  a  well-settled   principle  of  the  law  of  this 
state  that  sales  of  personal  chattels,  unaccompanied  by 
any  visible,  substantial  change  of  possession,  are  inop- 
erative as  against  the  creditors  of   the   vendor.     The 
case  of  sheriff's  sales  has  been  considered  an  exception 
from  the  operation  of  this  rule.     It  is  not  now  neces- 
sary, and  could  not  be  useful,  to  go  into  the  reasons  of 
the  exception.     The  cases  upon  that  subject  have  fol- 
lowed in  the  track  of  Kid  v.  Eawlinson,  2  Bos.  &  P. 
59.     The  principal  reasons  there  urged  in  favor  of  tlie 
determination  are,  that  the  publicity  and  character  of 
the  sale  rebut  all   inference  of   fraud.     For  myself.  I 
think  this  exception  rests  more  upon  the  fact  that  it  is 
a  transfer  of  title  by  operation  of   law  than  upon  its 
notoriety.     It  is  the    former    rather  than  the    latter 
which  distinguishes  it  from   sales   b}'  contract  of  the 
parties;  for,  if  all  public  sales  were  to  form  exceptions 
to  this  very  salutary  rule,  it  would,  doubtless,  cease  to 

TT9  Leonard  v.  Baker,  1  Maule  &  S.  251;  Woodham  v.  Baldock,  3 
T.  B.  Moore,  11;  8  Taunt.  676;  Wyatt  v.  Stewart,  34  Ala.  716;  Mont- 
gomery V.  Kirksey,  26  Ala.  172;  Garland  v.  Chambers.  11  Sraedes  & 
M.  337,  49  Am.  Dec.  63;  Ewing  v.  CargiU,  13  Smedes  &,  M.  70; 
Jezeph  V.  Ingram,  1  T.  B.  Moore,  189. 

-so  Rogers  V.  Vail,  16  Yt.  327. 


§  151       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  720 

have  any  beneficial  oiDeration.  Sheriffs'  sales,  and  all 
sales  made  by  officers  of  the  law,  must  be  held  prima 
facie  good  to  transfer  the  title  of  the  debtor.  Now,  no 
law  and  no  practice  requires  such  officer  to  make  any 
delivery  of  the  property.  When  he  appears  to  have 
proceeded  as  sheriff  or  other  officer,  and  the  sale  is  in 
invitum,  it  will  be  recognized  as  an  exception  to  the 
rule.  But  where  he  really  proceeds  by  consent  of  the 
parties,  and  in  making  the  sale  acts  as  the  agent  of  the 
parties,  and  not  as  the  minister  of  the  law,  his  proceed- 
ings cannot  be  allowed  any  greater  force  than  those  of 
any  other  auctioneer."  '^'^  The  fact  that  sales  by  auc- 
tion furnish  no  exception  to  the  general  rule  ^^^  strong- 
ly confirms  the  theory  announced  by  Judge  Eedfield, 
and  stated  in  the  preceding  quotation.  "An  execu- 
tion sale  may  be  resorted  to  for  the  purpose  of  hinder- 
ing, delaying,  or  defrauding  the  creditors  of  the  de- 
fendant,  and,  when  shown  to  have  been  resorted  to  for 
this  purpose,  it  will  be  treated  as  void.  The  reten- 
tion of  possession  by  the  defendant  after  f^uch  a  sale  is 
not  in  harmony  with  his  changed  relaJon  to  the  prop- 
erty, and  has,  therefore,  been  properly  regarded  as  a 
suspicious  circumstance — one  indicating  that  the  sale 
may  have  been  made  in  the  interest  of  the  defendant, 
without  desiring  to  deprive  him  of  any  beneficial  in- 
terest in  the  property,  but  rather  to  assure  him  of  the 
continuous  enjoyment  of  such  interest  by  withdrawing 
it  beyond  the  reach  of  more  hostile  creditors.  If,  in 
such  a  case,  the  plaintiff  in  execution  was  the  pur- 
chaser, he  must,  to  maintain    his  title,  show  that  his 

781  Kelly  V.  Hart,  14  Vt.  r.3:  Langhlin  v.  Fergiison.  G  Dana,  118; 
Stephens  v.  Barnett,  7  Dana.  2r>7. 

7«2  Rankin  v.  Holloway.  3  Smedes  &  M.  014;  Batchelder  v.  Carter, 
2  Vt.  168,  19  Am.  Dec.  707. 


721  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  132 

Judgment  was  an  honest  and  fair  one,"  ''*•*  The  reten- 
tion of  possession  by  the  debtor  may  undoubtedly  be 
considered,  in  connection  with  other  circumstances,  as 
tending  to  show  that  the  sale  was  fraudulent,  and 
therefore  void.'^**^ 

§  152.  Transfers  of  Title,  Made  to  Secure  the  Pay- 
ment of  Indebtedness,  are,  in  some  of  the  states,  treated 
differently  from  ordinary  bills  of  sale.  The  reason  of 
this  difference  has  been  thus  explained:  "There  is  evi- 
dently an  essential  difference  between  the  effect  of  a 
possession  retained  by  the  maker  of  an  absolute  bill  of 
sale,  and  the  possession  retained  by  the  maker  of  a 
mortgage.  The  object  of  one  is  to  pass  an  absolute 
right  of  property,  and  the  object  of  the  other  is  to  give 
a  security  defeasible  upon  a  particular  contingency. 
The  possession  in  the  former  case  is  utterly  incompati- 
ble with  the  deed;  whereas,  in  the  latter  case,  there  ex- 
ists no  such  incompatibility.  Whilst,  therefore,  the 
possession  in  the  former  case  may  be  correctly  said  to 
form  conclusive  and  introversible  evidence  of  fraudu- 
lent intent,  and  render  the  deed  per  se  fraudulent,  such 
cannot  be  admitted  to  be  the  effect  of  the  possession  in 
the  latter  case."  '**^  This  line  of  reasoning  has  been 
frequently  followed  in  other  states,  and  mortgages  of 
personal  property  sustained,  though  the  possession  re- 
mained with  the  mortgagor;  and,  although,  perhaps, 

783  Floyd  V.  Goodwin,  8  Yors.  484,  29  Am.  Dec.  1.10. 

784  Stovall  V.  F.  &  M.  Bank,  8  Smodes  &  M.  3a"i.  47  Am.  Dec.  85. 

785  McGowen  v.  Hoyt,  5  Lltt.  243;  Bucklin  v.  Thompson.  1  J.  .T. 
Marsh.  223;  Snyder  v.  Tlitt,  2  Dana,  204;  Clayborn  v.  Hill.  1  Wash. 
(Va.)  177,  1  Am.  Doc.  4r.2:  Haven  v.  Low.  2  N.  H.  13,  9  Am.  Dec.  25; 
Thornton  v.  Davenport,  1  Scam.  296.  29  Am.  Dec.  358;  Bumpas  v. 
Dotson,  7  Humph.  ."10,  40  Am.  Dec.  81;  Stix  v.  Sadler,  109  Ind.  254; 
Brunswick  v.  McClay.  7  Xeb.  137;  Kleine  v.  Katzeuberger,  20  Oh. 
St.  110,  5  Am.  Rep.  630. 

Vol.  I.— 46 


§  152       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  7ii2 

in  some  cases,  the  retention  of  possession  bj  the  mort- 
gagor may  be  deemed  suspicious,  yet  it  will  always  be 
regarded  in  a  more  favorable  light  than  in  the  case  of 
an  absolute  bill  of  sale;  ''****  and  this  is  generally  true 
after  as  well  as  before  default  is  made  in  payment  of 
the  debt  secured.''**''  But  in  Indiana  the  mortgagor's 
continuance  in  possession  after  condition  broken  was 
held  to  be  prima  facie  evidence  of  fraud. ''^^  A  convey- 
ance made  to  trustees,  for 'the  benefit  of  creditors,  has 
also  been  treated  in  the  same  manner  as  a  mortgage, 
for  the  object  of  the  transaction  is  to  enable  the  trus- 
tees to  appropriate  the  property  to  the  satisfaction  of 
the  debts;  and  it  is  not  inconsistent  with  this  object 
that  the  assignor  should  continue  in  possession  until  ar- 
rangements for  the  final  disposition  of  the  property  can 
be  consummated.'^^^  But  certainly  the  temptation  to 
fraudulent  mortgages  is  as  great  as  to  fraudulent  sales. 
There  is,  therefore,  great  propriety  in  guarding  against 
such  mortgages,  and  preventing  the  mortgagor  from 
gaining  credit  by  his  apparent  ownership  of  property 
in  w^hich  he  has  little  or  no  beneficial  title.  In  many 
of  the  states  chattel  mortgages  are  required  to  be  re- 
corded, before  the  necessity  for  a  change  of  possession 

786  United  States  v.  Hooe,  3  Cranch,  73;  Magee  v.  Carpenter,  4 
Ala.  469;  Planters  &  M.  Bank  v.  Willis,  5  Ala.  770;  Bearing  v. 
Watkins,  16  Ala.  20;  De  Wolf  v.  Harris,  4  Mason,  515;  Ash  v. 
Savage,  5  N.  H.  ,545;  Barker  v.  Hall,  13  N.  H.  298;  Rose  v.  Burgess, 
10  Leigh,  193;  Martin  v.  Ogden,  41  Ark.  186;  Sperry  v.  Etheridge, 
m  Iowa,  543;  Wilson  v.  Sullivan.  .58  N.  H.  2G0. 

787  Head  v.  W'ard,  1  .1.  J.  Marsh.  281. 

788  Hankins  v.  Ingols,  4  Blackf.  35. 

789  Ravisies  v.  Alston,  5  Ala.  297;  Vernon  v.  Morton,  8  Dana.  247; 
Christopher  v.  Covington,  2  B.  Mon.  3.57;  Hemi)stead  v.  .Johnston, 
18  Ark.  123,  65  Am.  Dec.  458;  W^ilson  v.  Russell,  13  Md.  495,  71  Am. 
Dec.  645. 


723  PERSONAL  PROPERTY  SUI3.JECT  TO  EXECUTION.      §  152a 

can  be  removed;  '^^  while  in  .some  ot  hers,  the  presump- 
tion  arising  from  the  continued  possession  of  the  mort- 
gagor is  precisely  the  same  as  in  the  case  of  an  abso- 
lute bill  of  sale."^"^ 

§  152  a.  Conditional  Sales  have  also  been  held  not  to 
be  of  a  character  which  necessaiil}'  recjuire  a  change 
of  possession  to  relieve  them  from  the  imputation  of 
fraud.  "If  the  deed  or  bill  of  sale  show  that  an  abso- 
lute and  immediate  title  has  passed,  the  possession, 
which  is  its  natural  consequence  must  follow  and  ac- 
company it.  But  if  the  contract  evince  only  a  condi- 
tional sale,  and  the  absolute  title  has  not  been  changed, 
it  is  not  necessary  that  there  should  be  a  change  of  pos- 
session. But  the  condition  must  be  in  the  title,  and 
not  simply  in  the  contract;  that  is,  the  title  must  de- 
pend on  condition;  and  this  must  appear  in  the  deed  or 

TooGriswold  v.  Rhoklon.  4  N.  Y.  508:  Call  v.  Gray,  37  N.  H.  428; 
75  Am.  Dec.  141;  Bevans  v.  Bolton.  31  Mo.  437;  Kich  v.  Roberts.  50 
Me.  395;  Langworthy  v.  Little.  12  Cush.  109;  Henderson  v.  Morgan. 
26  111.  431;  Weed  v.  Standley,  12  Fla.  10(1;  Rood  v.  Welch,  28  Conn. 
157;  Matlock  v.  Strauglin,  21  Ind.  128;  Kulin  v.  Graves,  9  Iowa,  303; 
Robinson  v.  Elliott,  7  Chic.  L.  N.  193. 

701  Case  V.  Winship.  4  Blackf.  42.5,  30  Am.  Dec.  G64;  Rood  v. 
Welt?h,  28  Conn.  157;  Ryall  v.  Rolle,  1  Wils.  2G0;  Welsh  v.  Bekey, 
1  Pen.  &  W.  57;  Jenkins  v.  Eichelberger,  4  Watts,  121.  28  Am.  Dec. 
691;  Clow  V.  Woods,  5  Serjr.  &  R.  275.  9  Am.  Dec.  346;  Trovillo  v. 
Shingles,  10  Watts,  438;  Weeks  v.  Wead.  2  xVik.  64;  Tol)ias  v. 
Francis,  3  Vt.  425,  23  Am.  Dec.  217;  Woodward  v.  Gates,  9  Vt.  358. 
"With  respect  to  mortgages  deemed  fraudulent  because  they  permit 
the  mortgagor  to  remain  in  possession  and  to  sell  the  mortgaged 
chattels,  see  ante,  §  145;  Lund  v.  Fletcher,  39  Ark.  325,  43  Am.  Rep. 
270;  Jacobs  v.  Ervin,  9  Or.  52;  Texas  Bank  v.  Lovonberg.  63  Tex. 
506;  Lister  v.  Simpson.  38  N.  J.  Eq.  438;  Rome  Bank  v.  Haselton, 
15  Lea,  216;  Gauss  v.  Doyle.  46  Ark.  122;  Bullene  v.  Barrett.  87  Mo. 
185;  Wineburgh  v.  Schaer.  2  Wash.  328;  Joseph  v.  Levi,  58  Miss. 
843;  Meyer  v.  Evans,  66  Iowa,  179.  Mortgage  made  for  a  greater 
sum  than  is  owing  to  the  mortgagee,  for  the  purpose  of  protecting 
the  property  from  creditors,  is  fraudulent  and  void.  Mitchell  v. 
Sawyer,  115  111.  650. 


§  153       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  724 

bill  of  sale;  and  the  condition  must,  when  it  shall  so 
appear,  be  such  as  the  court  may  consider  reasonable 
and  legal.  For  the  law  does  not  declare  that  in  condi- 
tional sales  the  retention  of  the  possession  by  the  ven- 
dor may  not  be  fraudulent;  but  that,  as  a  general  rule, 
it  is  not  necessarily  so.  It  will,  however,  be  so  con- 
sidered unless  the  condition  be  consistent  with  the 
reason  and  policy  of  the  rule  itself,  which  defines  fraud 
in  law."  "^"^ 

§  153.  Character  and  Situation  of  Property  as  Dis- 
pensing with  Necessity  for  Change  of  Possession.— The 
exceptions  to  the  rule  requiring  a  change  of  possession 
to  accompany  an  absolute  sale  to  free  it  from  the  im- 
putation of  fraud,  arising  from  the  character  and  situa- 
tion of  the  property,  will  be  considered  together.  They 
both  rest  on  the  same  ground,  namely,  the  absurdity  of 
requiring  that  which  is  impossible  or  highly  imprac- 
ticable;'^'^^^  and  they  ai'e  both  limited  by  the  require- 
ment that  such  a  change  of  possession  as  is  practicable 
must  not  be  omitted.  Where  property,  from  its  char- 
acter, is  such  that  possession  cannot  be  taken  at  the 
time  of  the  sale,  the  want  of  a  notorious  change  of  pos- 
session is  not  inconsistent  with  the  transaction,  and 
does  not  render  the  sale  void.  Thus,  if  a  man  sells  his 
growing  crop,  it  must  necessarily  be  left  standing  in 
the  same  field  till  ready  for  harvesting.  The  vendor  is 
not  obliged,  because  he  sold  his  crop,  to  quit  possession 

792  Hundley  v.  Webb,  3  .T.  J.  :Marsh.  044.  20  Am.  Dec.  189;  Bar- 
row V.  Paxton,  5  .Tohns.  2.j8.  4  Am.  Dec.  3r)4. 

793  Glioses  in  action,  in  some  states,  form  an  exception  to  this 
statement.  Their  delivery  is,  in  many  instances,  possible;  but 
its  absence  has  been  held  not  to  render  the  sale  fraudulent.  Hall 
V.  Redding,  13  Cal.  214;  Livingston  v.  Littcll.  1."  Wis.  218.  But 
Woodbridge  v.  Perkins,  3  Day,  304;  rurric  v.  Hart,  2  Sand.  Ch.  353, 
and  Mead  v.  Phillips,  1  Sand.  Cli.  S3,  sustain  a  contrary  doctrine. 


725  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  153 

of  his  farm.     Growing  crops,  therefore,  form  an  excep- 
tion to  tlie  rule  that  there  must  be  a  change  of  posses- 
sion to  render  the  sale  valid, '"^  altiiough  raised  by  a 
tenant,  and  he  continues  to  reside  on  the  land,  with 
his  vendee,  after  the  sale.''"^     In   ^lissouri,  however, 
while  it  is  conceded  that  a  purchaser  of  a  growing  crop 
cannot  take  possession  of  it  while  unmatured,   and 
hence,  that  there  cannot  be,  with  respect  to  it,  such  an 
open  and  visible  change  of  possession  as  must  accom- 
pany a  sale  of  chattels,  still,  its   courts   require  that 
there  be  siome  delivery  and   some  act  of   notoriety  in 
•connection  with  the  transfer,  saying:  ''But  whatever 
be  the  nature  of  the  property  sold,  the  delivery,  when 
made,  should  be  evidenced  by  an  act  of  some  notoriety, 
so  tliat  the  public  may  be  advised   of  the  change   of 
ownership.     Especially  is  this  necessary  when  the  ven- 
dee, as  in  this  case,  is  to  remain  in  possession  of   the 
property."     It  was  not  necessary  in  this  case  to  deter- 
mine what  acts  were  sufficient  to  give  the  transfer  that 
notoriety  required  by  the  court,  as  it  appeared  in  the 
case  before  it  that  the  vendee  had  never  been  upon  the 
premises,  or  seen  the  property  purchasd,  and   that  no 
person  was  informed    of   the  sale  except  the   parties 
thereto  and  the  son  of  the  vendee.'^"    In  a  subsequent 
case,  where  standing  corn  was  purchased,  and  the  ven- 
dee rode  through  it  and  accepted  a  formal  delivery  of 
possession,  the  sale  was  sustained.''*''     ''The  acts  that 
will    constitute  a  delivery  will    vary  in    the   different 
classes  of  cases,  and  will  depend  very  much  uixtu    the 

794  Davis  V.  ^rcFarlano.  37  Cal.  038;  Bellows  v.  Wells.  3G  Vt.  600; 
Robbins  v.  Oldhnni,  1  Duvall.  28;  Ilorron  v.  Fry.  2  Pen.  &  W.  263. 

'95  Visher  v.  Webster.  13  Cal.  nS;  Bern.Tl  v.  Ilovioiis.  17  Cal.  541, 
T9  Am.  Dec.  147;  O'Brien  v.  Ballon.  IIG  Cal.  31S. 

796  state  V.  Dnrant.  53  Mo.  App.  403.  69  Mo.  App.  390. 

797  State  V.  Casteol,  51  :\Io.  App.  143. 


§  153       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  725 

character  and  quantity  of  the  property  soh],  as  well  as 
the  circumstances  of  each  particular  case.  The  same 
acts  are  not  necessary  to  make  a  good  delivery  of  a  pon- 
derous article,  like  a  block  of  granite  or  a  stack  of  hay^ 
as  would  be  required  in  case  of  an  article  of  small  bulk^ 
as  a  parcel  of  bullion.  It  might  properly  be  required 
that  there  should  be  a  manual  delivery  of  a  single  sack 
of  grain  at  the  moment  of  its  sale;  but  upon  the  sale  of 
two  thousand  sacks,  this  could  not  be  done  without  in- 
curring great  and  unnecessary  expense,  and  departing 
from  the  usual  course  of  business."  "^^^ 

Hence,  where  lumber  is  in  piles,'^^"  or  hay  in  a 
field,**""  and  the  purchaser  does  all  that  the  nature  of 
the  property  wall  permit  toward  at  once  reducing  it  to 
his  possession,  he  will  be  allowed  a  reasonable  time  to 
remove  it  and  make  the  change  visible  and  notorious. 
But  although  the  property  is  not  capable  of  manual  de- 
livery, the  i^urchaser  must  not  omit  to  do  what  he  can 
toward  giving  notice  of  his  acquisition.  The  owner  of 
a  kiln  of  unburnt  bricks,  one  hundred  and  thirty  feet 
long,  thirty  feet  wide,  and  fifteen  feet  high,  gave  a  bill 
of  sale  thereof,  and  made  a  formal  delivery.  ■  He  then 
continued  in  possession  of  the  kiln,  as  was  necessary  ta 
attend  to  burning  it.  lie  employed  the  men  and 
bought  the  wood.  The  vendee  visited  the  kiln  five 
times  while  burning,  but  informed  no  one  of  his  claim. 
It  was  held  that  the  sale  was  void  as  against  a  creditor 
attaching  the  property  subsequently  to  the  burning  of 
the  kiln,  and  while  the  bricks  were  yet  too  hot  to  han- 

T08  Lay  V.  Noville,  25  Cal.  552. 

799  iiaynes  v.  Ilunsicker,  26  Pa.  St.  58;  Morse  v.  Powors.  17  N.  H. 
286. 

«on  riiaffiri  X.  Donb.  14  Cnl.  .'584:  Paeheco  v.  Hunsacker,  14  CaJ. 
120;  Conway  v.  Edwards,  6  Nev.  190. 


727  PERSONAL  rROPERTY  SUBJECT  TU  EXECUTlUN.        g  lo6 

jjjg  801  r^YiQ  delivery  of  a  house  may  be  iiuulc,  symboli- 
cally, by  giving  the  vendee  the  key.^"-  Wluu  we  come 
to  consider  the  exception  arising  from  llic  situation  of 
the  property,  we  find  that  it  usually  rests  on  necessity, 
and  that,  in  general,  even  a  symbolical  delivery  is  not 
sufficient  where  an  actual  delivery  is  practicable.*'*'-'* 
But  where  a  vessel  or  other  properly  is  at  sea,*"*  or 
where  property  is  in  custody  of  an  ofilccr  of  the  law,*"' 
or  where  logs  are  floating   in   a  river,"""^  a  symbolical 

801  W'oods  V.  Bugbey,  29  Cal.  4GG. 

802Viniiig  V.  Gilbreth,  39  Me.  490. 

S03  Cunningham  v.  Neville,  10  Serg.  &  n.  201;  Chickorlng  v.  White, 
42  :M!nn.  4^7. 

so4K:ullam  v.  Tucker,  1  Tick.  389,  11  Am.  Dec.  202;  Gardner  v. 
Howland.  2  Tick.  599;  Dawes  v.  Cope,  4  Binn.  2.";8;  Ludwig  v. 
Fuller,  17  :^Ie.  IdC;  Lanipriere  v.  Basley.  2  Term.  Rep.  485;  Thuret 
V.  .lenkins,  7  Mart.  318,  12  Am.  Dec.  508. 

S05  Klinck  V.  Kelly.  G3  Barb.  G22. 

806  Leonard  v.  Davis,  1  Black,  47G;  Boynton  v.  Yeazie,  24  Me.  280; 
Sanborn  v.  Kittredge.  20  Vt.  032,  50  Am.  Dec.  58.  In  the  case  of 
McMarlan  v.  English,  74  Pa.  St.  290,  it  was  held  that  in  the  case 
of  the  sale  of  the  furniture  of  a  large  hotel,  it  was  enough  for  the 
vendee  to  assume  the  direction  and  control  of  the  property  in  such 
an  open  and  notorious  manner  as  usually  accompanies  an  honest 
transaction.  In  Straus  v.  Minzesheimer,  78  111.  492,  the  vendor  of 
a  large  quantity  of  cigars  brought  the  vendee  to  the  factorj',  and 
said  to  him,  "Here  are  j-our  cigars."  He  handed  to  him  several 
boxes,  and  the  vendee  paid  for  the  Avhole,  employed  the  cigar- 
makers  in  charge  of  the  factory  to  stamp  them  in  accordance  with 
the  laws  of  the  United  States,  which  require  stampiug  before  re- 
moval. This  was  hold  to  be  as  complete  a  delivery  as  the  vendor 
could  make,  and  therefore  sufficient.  In  Morgan  v.  Miller,  02  Cal. 
492,  the  cattle  sold  were  running  at  large  with  those  of  another  per- 
son, and  the  vendor  had  them  driven  up  into  a  corral,  and  said  to  the 
vendee,  "Here  are  your  cows  that  you  bouglit."'  The  vendee  then 
requested  a  person  to  take  charge  of  the  cattU>  for  her,  which  he 
undertook  to  do.  This  was  held  to  be  a  sufficient  delivery.  lu 
Schmidt  v.  Nunan.  03  Cal.  371,  the  vendor  sold  a  <iuantity  of  hay  on 
his  ranch,  to  be  delivered  at  a  landing  on  the  river.  lie  delivered 
it  there,  and  it  was  put  on  boiud  a  schooner  chartered  by  the 
vendee,  when  it  was  attached  by  ihe  creditors  of  the  vendor.  It 
was  held  to  have  been  delivered  to  tlie  vendee,  and  not  liable  to  at- 
tachment.    In  Toguiui  v.  Kyle,  17  Nev.  209,  45  .\ni.  Rep.  442,  the 


§  153       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  728 

delivery  will  suffice;  or,  if  that  be  impossible,  the  sale 
will  be  valid  without  it.     If  property  is  in  a  warehouse, 

vendors  executed  to  the  vendees  a  bill  of  sale  of  twelve  thousand 
bushels  of  charcoal  in  pits  on  the  vendor's  laud.  The  vendees  sent 
a  person  a  few  days  afterward  to  the  pits,  who  marked  them  with 
their  names.  This  person  remained  in  charge  a  few  days,  and  then 
requested  a  neighbor  to  look  after  the  pits,  which  he  did.  This  was 
held  to  be  a  sufficient  delivery. 

In  Vermont  it  is  held  that  logs  in  a  stream,  or  piled  on  its  banks, 
especially  if  partly  frozen  into  the  ice,  are  of  such  a  cumbrous 
character,  and  so  situated,  as  to  pass,  as  against  creditors,  by  a 
bill  of  sale  without  further  delivery.  Sanborn  v.  Kittredge.  20 
Vt.  632,  50  Am.  Dec.  58;  Hutchins  v.  Gilchrist.  23  Vt.  82;  Birge 
v.  Edgerton,  28  Vt.  291;  Fitch  v.  Burke.  38  Vt.  683;  Sterling  v. 
Baldwin,  42  Vt.  306;  Ross  v.  Draper,  55  Vt.  404,  45  Am.  Rep.  624; 
Kingsley  v.  White,  57  Vt.  565.  Ross,  J.,  in  delivering  the  opinion 
of  the  court  in  the  case  last  cited,  said:  "To  hold  that  such  prop- 
erty comes  within  the  operation  of  the  ordinary  rule  would  prac- 
tically preclude  any  sale  of  it  which  would  be  valid  against  attach- 
ment by  the  creditors  of  the  vendor.  But  in  Cobb  v.  Haskell,  14 
Me.  303,  31  Am.  Dec.  56,  where  the  vendor  of  lumber  lying  in  dif- 
ferent piles  in  a  mill-yard  brought  the  vendee  in  sight  of  it,  and 
said,  "There  is  the  lumber,"  and  told  him  to  take  it  away  and 
make  the  best  of  it,  and  the  vendee  went  away  and  left  it  as  it 
was,  and  exercised  no  ownership  over  it  for  two  months,  it  was 
held  not  to  have  been  delivered,  as  against  attaching  creditors  of 
the  vendor.  In  Illinois,  corn  contained  in  four  cril)S  or  pens  was 
claimed  to  have  been  sold  by  its  owner  to  another,  and  after  such 
sale  a  writ  of  execution  was  levied  thereon  against  the  vendor, 
and,  the  sufficiency  of  the  delivery  being  in  question,  the  court  said: 
"Where  the  articles  sold  are  cumbrous  or  ponderous,  so  that  a  re- 
moval is  not  practicable,  it  is  not  necessary  that  there  should  be 
an  actual  change  of  possession  from  hand  to  hand,  but  it  Is  suf- 
llcient  if  the  buyer  assumes  control  of  the  property  in  an  open  and 
notorious  manner,  and  the  seller  is  divested  of  every  species  of 
possession  from  which  an  inference  of  ownership  might  arise. 
AVhen  an  actual  change  of  possession  is  not  practicable,  the  acts 
that  will  constitute  a  sufficient  delivery  as  to  creditors  vary  in  the 
different  classes  of  cases  and  depend  upon  the  character  of  the 
property  sold  and  the  circumstances  of  each  particular  case. 
Wliether  all  had  been  done  that  ought  to  have  been  done  to  con- 
stitute a  delivery,  is,  therefore,  largely  a  question  of  fact  to  be 
determined  by  the  jury  under  proper  instructions.  In  the  case  at 
bar  the  corn  was  not  moved  from  tne  cribs,  nor  was  it  wholly 
paid  for.    Whitman  continued  in  possession  of  the  farm  and  was 


729  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  153 

xind  the  wareliouseman  has  is.siu-d  his  recoipt  therefor, 
the  owner  may,  by  transfer  of  such  receipt,  vest  title  in 

ia  the  apparent  possession  of  the  cribs  and  coin  wlicn  the  levy 
was  made.  He  exercised  acts  of  ownership  over  tin-  <M)rn  for  several 
months  after  the  sale,  even  to  the  extent  of  feeding;  some  throe 
or  four  hundred  bushels  of  it  to  his  stock.  Tliere  was  nothing  to 
idUicate  to  the  general  public  that  the  corn  had  passed  out  of  his 
possession  or  control.  The  jury  were,  we  think,  i)roperIy  instructed 
as  to  the  law  sovcrninj?  the  delivery  of  such  property,  and  the  evi- 
dence was  sufficient,  in  our  opinion,  to  juslify  the  jury  in  lintlin.:? 
that  there  was  no  such  chau<?e  of  possession  as  the  rules  of  law- 
required.  The  sale  was,  therefore,  fraudulent  in  law.  and  void  as  to 
creditors."  Ilewett  v.  Griswold.  43  111.  App.  A:].  In  Minnesota,  cat- 
tle were  sold  by  a  father  to  his  son,  and  wore  afterward  seized 
by  the  sheriff  under  an  execution  against  the  father.  In  sustaining 
•the  sufficiency  of  the  acts  relied  upon  to  constitute  a  change  of 
possession,  the  court  said:  "The  defendants  contend  that  the  evi- 
dence failed  to  show  an  immediate  or  any  delivery  of  the  cattle 
to  the  plaintiff  at  the  time  of  the  alleged  sale,  or  that  there  was 
a  change  of  possession,  and  for  that  reason  the  presumption  is 
that  the  transfer  was  fraudulent  as  to  the  defendant  crotlitors. 
The  statute  (Gen.  St.,  c.  41,  §  15)  imperatively  exacts  immediate 
delivery  to  the  vendee  of  chattels  sold  while  in  Iho  vendor's  pos- 
session, as  well  as  an  actual  and  conlinued  change  of  possession. 
Precisely  what  constitutes  a  delivery  and  change  of  possession 
must  depend  largely  upon  the  kind  and  nature  of  the  chattels,  the 
situation  of  the  parties,  and  other  circumstances  peculiar  to  each 
case.  No  arbitrary  test  or  rule  can  be  laid  down;  but  in  the  case 
at  bar  delivery  was  claimed,  and  thereafter  an  actual  and  con- 
tinued change  of  possession  insisted  upon  by  the  plaintiff,  concern- 
ing which  there  was  enough  testimony  to  warrant  a  linding  in  his 
favor.  To  be  sure,  the  cattle  were  not  driven  off  the  father's  farm; 
but  it  is  quite  evident  that,  after  the  alleged  sale,  the  son  openly 
claimed  to  be  the  owner,  and  that  the  father  asserted  no  claim, 
and  ceased  to  exercise  his  authority  over  the  stock;  all  of  which 
was  made  known  to  the  neighbors.  The  court  was  fully  justified 
in  its  refusal  to  charge,  as  requested  by  the  appellant,  that  there 
was  an  entire  failure  of  testimony  tending  to  show  either  delivery 
or  change  of  possession."     Tuuell  v.  Larson.  IM)  Minn.  2G9. 

If  a  vessel  is  abroad  at  the  time  of  its  sale,  it  will  bo  sufficient 
if  it  be  delivered  within  a  reasonable  time  after  its  arrival.  Thuret 
V.  Jenkins,  7  Mart.  (La.)  318;  12  Am.  Dec.  oO&.  But  a  boat  upon  the 
water  will  not  pass,  as  against  a  subsequent  purchaser,  by  an  oral 
sale  without  delivery.    Veazie  v.  Sonun-by,  ,">  Allen.  280. 

The  delivery  of  warehouse  receipts  for  bulky  articles  stored  in 


§  153       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  730 

liis  transferee  as  against  the  claims  of  the  owner's  credi- 
tors.**"'' 

In  such  cases,  however,  the  vendor  must  not  be  per- 
mitted to  continue  in  the  apparent  ownership  of  the 
property  longer  than  its  situation  and  condition  render 
necessary.  So,  where  cattle  were  roaming  at  lacge 
over  the  plains,  upon  a  certain  range,  it  was  held  that 
the  vendee  should  have  a  reasonable  time  after  the  sale 
to  prepare  for  a  rodeo,  and  to  give  proper  notices^ 
thereof,  in  order  to  separate  the  cattle  purchased  from 
other  stock,  and  have  them  properly  marked  and 
branded.®***  The  owner  of  a  large  number  of  horses 
and  mules  sold  twenty  head  thereof,  which  were 
pointed  out  to  the  purchaser  in  a  corral  wherein  they 
then  were,  and  a  bar  was  branded  on  those  sold,  under 
the  brand  of  the  vendor.  The  horses  were  then  turned 
out  and  permitted  to  range  with  others,  which  still  be- 
longed to  the  vendor.  About  three  years  afterward 
the  horses  purchased  were  branded  with  the  vendee's, 
brand.  Some  two  years  later  they  were  levied  upon 
under  an  execution  against  the  vendor.  The  trial 
court  found  that  these  facts  did  not  constitute  an  im- 
mediate or  continued  change  of  possession,  and  hence, 
that  the  property  was  subject  to  the  execution  under 
which  the  levy  had  been  made.  The  appellate  court 
reversed  this  decision,  maintaining  that  Avhen  the  bar 

the  warehouse  is  a  sufficient  delivery  of  such  articles.  Usage  has 
made  the  possession  of  these  documents  equivalent  to  the  posses- 
sion of  the  property  itself.  Horr  v.  Barker.  8  Cal.  r>09;  Burton  v. 
Curyea,  40  111.  320;  Cool  v.  Phillips.  66  111.  2t7:  Broadwell  v.  How- 
ard, 77  111.  305;  National  Bank  v.  Wallbridse,  10  Ohio  St.  419;  Gib- 
son V.  Stevens,  8  How.  384.  And  the  delivery  of  the  keys  of  a  ware- 
house in  which  bulky  articles  are  stored  is  a  sufficient  delivery  of 
the  articles  themselves.  Niagara  Co,  National  Bank  v.  Lord,  33 
Hun,  557. 

SOT  Bank  of  Newport  v.  Tlirsch.  .^0  Ark.  22.". 

808  Walden  v.  Murdock,  23  CaJ.  540,  S3  Am.  Dec.  135. 


731  PERSONAL  TROPERTY  SUBJECT  TO  EXECUTION.        §  liiS 

was  branded  under  the  vendor's  brand  the  horses  pur- 
chased could  thereby  be  distinguished  from  the  others; 
that  when  they  were  turned  out  on  the  rirnge  they  were 
not  in  the  actual  possession  of  ixny  one,  and  that  the 
constructive  possession  accompanied  the  title,  which 
was  in  the  purchaser,  saying:  "What  more  could  hnve 
been  done  to  constitute  a  delivery?  The  law  does  not 
require  a  proclamation  of  delivery  to  be  made,  nor  that 
these  horses  should  be  temporarily  separated  from  the 
others,  or  put  in  a  corral  or  enclosure.  All  that  wasi 
necessary  to  be  done  was  done.  There  ^^as  a  perma- 
nent identification  of  the  horses,  and  the  relations  of 
the  parties  to  those  horses  were  changed.  But  when 
this  was  done,  they  were  turned  out  of  Kirkpatrick's 
corral  and  went  off  on  to  the  range,  thus  severing  all 
connection  between  them  and  their  former  owners.  Bv 
this  there  was  an  unmistakable  delivery  and  a  total 
change  of  possession."  ****** 

Property,  when  sold,  may  be  in  the  possession  of  a 
third  person,  as  bailee  for  the  vendor.  If  the  bailment 
be  such  as  to  give  the  bailee  the  right  to  hold  the  prop- 
erty for  a  definite  time,  the  delivery  of  possession  to 
the  vendee  must  be  omitted  from  necessity.  But  even 
if  the  bailment  be  for  no  definite  time,  it  is  sufficient 
that  the  bailee  be  notified  of  the  sale;  ^^^  and  if  he  be  at 

809  Dodfje  V.  .Tones,  7  Mont.  121. 

810  Moore  v.  KolleJ^  5  Vt.  P>4.  2G  Am.  Deo.  2S3:  Ruriro  v.  Cone.  G 
Allen,  412:  Barney  v.  Brown.  2  Vt.  ,374,  19  Am.  Dec.  720;  Brocken- 
ridse  y.  Anderson.  3  .T.  .T.  Mnrsli.  710;  Carter  v.  Willard,  19  Pick. 
1;  Harding  v.  Janes,  4  Vt.  4(52;  Pierce  v.  Cliipman.  S  Vt.  339;  Kroesen 
V.  Seevcrs,  5  Leigh,  434;  Frye  v.  Sliepler.  7  Pa.  St.  91:  Kolierts  v. 
Guernsey,  3  Grant  Cas.  237;  IIoav  v.  Taylor,  ."2  ^fo.  .">92:  Butt  v. 
Caldwell,  4  Bibb.  458;  I.ynde  v.  Melviii.  11  \t.  683.  34  Am.  Dec. 
717;  Morgan  v.  Miller,  62  Cal.  492;  ITildreth  v.  Fitts.  53  Vt.  684; 
Stowe  V.  Taft,  .58  N.  II.  445;  Wing  v.  IVabody.  .57  Vt.  19;  Campbell 
V.  Hamilton,  63  Iowa,  293;  Linton  v.  Butz,   7  Pa.   St.  89,  47  Am. 


§  153       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  732 

a  distance,  it  is  probable  that  the  parties  will   be  al- 
lowed necessary  time  in  which  to  convey  him  the  infor- 
mation.**^^    S.  sold  certain    horses  on  the   eighteenth* 
day  of  October  to  W.,  which  were  then  on  a  mountain 
range  belonging  to  D.,  and  were  being  there  cared  for 
by  him  for  S.,  and  S.,  in  anticipation   of  the   sale,  di- 
rected D.  to  get  up  the  horses  for  W.,  and  at  the  time 
of  the  sale  told  W.  of  the  direction  thus  given  D.,  and 
D.,  on  November  12th,  wrote  to.W.  to  come  for  the 
horses,  as  they  had  been  gotten  up  for  him,  and  W.  an- 
swered that  he  wanted  D.  to  keep  them  for  him  during 
the  winter.     This  D.  did,  and  the  horses  remained  in 
his  possession  until  the  ensuing  spring,  when  they  were 
attached  as  the  property  of  S.     They  were  held  not 
liable  to  such  attachment,  in  an  opinion  in  which  the 
court  said:  "Wheoi   property  is    so  situated  that   the 
buyer  is  entitled  to  and  can  rightfully  take  possession 
of  it  at  his  pleasure,  he  is  considered  as  having  actually 
received  it  as  the  statute  requires.     Accordingly,  it  has 
been  held,  if  the  vendor  of  goods  in  the  care  and  keep- 
ing of  a  third  person  directs  him  to  deliver  them  to  the 
vendee,  and  the  party  holding  the  goods,  on  notice  and 
application  of  the  vendee,  assents  to  retain  the  goods 
for  him,  it  is  a  delivery  sufficient  to  transfer  the  title 
and  to  satisfy   the    statute.     (Means    v.    Williamson, 
37  Me.  55G.)     By  delivering  the  bill    of    sale    to    the 
plaintiff,  and  giving   direction   to    his    agent   to    get 
the   horses   together,   and   keep   them   for   the  plain- 
tiff, to  whom  they  had  been  sold,  Sotcher  transferred 
them  to  the  plaintiff;  and  when  the  agent,  in  obedi- 

Dec.  501;  Potter  v.  Washburn,  13  Vt.  558,  37  Am.  Dec.  ()15;  Cameron 
V.  Calberg  (Cal.).  31  Pac.  530;  Murphy  v.  Braase  ddnho).  32  Pac 
208;  Byrnes  v.  Hatch,  77  Cal.  241;  Conrad  v.  Smith.  2  N.  D.  408. 
811  Ricker  v.  Cross,  5  N.  H.  570. 


733  PERSONAL  PROPEUTY  S>L'BJE;T  TO  EXECUTION.        §  152 

ence  to  the  direction  which  he  had  received,  collected 
them  together  in  his  pasture  for  the  plaintiff,  and 
wrote  to  him  that  they  were  ready  for  him,  and  to  come 
and  take  them,  and  the  plaintiff  employed  the  agent  to 
take  charge  of  them  and  winter  them  for  him,  this  was 
an  actual  delivery  of  the  property,  so  far  as  the  nature 
and  condition  of  the  property  admitted  of  it."  **^^  If 
the  bailee  himself  becomes  the  purchaser  of  the  prop- 
erty, it  is  manifest  that  there  cannot  be  any  visible 
change  of  possession,  and  hence,  none  is  required.  He 
may  continue  in  possession  as  before.®*"  If  property, 
at  the  time  of  the  sale  thereof,  is  in  custody  of  an  officer 
of  the  law,  as  where  it  has  been  seized  under  an  attach- 
ment against  its  owner,  as  the  latter  has  not  posses- 
sion of  it,  he  cannot  make  any  delivery.  The  fact  that 
the  goods  are  in  custody  of  the  law  does  not  prevent  a 
valid  sale  thereof  by  their  owner,  subject  to  the  lien 
of  the  officer  holding  ijossession,  and,  as  the  latter  haa 
the  right  to  retain  possession  until  his  lien  is  satisfied, 
no  change  of  possession  need  accompany  the  sale  of  the 
vendor's  interest  therein.***^  If  the  owner  of  a  stock 
of  goods  contained  in  a  store,  being  then  absent  there- 
from, transfers  his  entire  stock  in  trade,  including 
store  furniture,  fixtures,  and  all  notes  and  accounts 
belonging  to  the  trade,  and  the  vendor  and  vendee 
unite  in  a  telegram  to  the  clerks  in  charge  of  the  store 
notifying  them  of  the  sale,  ordering  them  to  continue 
the  business,  and  that  everything  done  thereafter  is  to 
belong  to  the  purchaser,  and  also  address  them  a  let- 
ter explaining  the  transaction,  and,  on  receipt  of  the 
letter,  the  clerks  balance  the  cash,  and  have  a  lease  of 

812  WiUiams  v.  Lerch.  56  Cal.  334. 
81S  Hogan  v.  Cowell.  73  Cal.  211. 
614  Hauser  v.  Beaty,  93  Mich.  499. 


§  153       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION,     i.    734 

the  store,  and  the  policies  of  insurance  on  the  stock 
transferred  to  the  vendee,  such  a  change  of  possession 
is  thereby  consummated  as  meets  the  requirements  of 
the  statute.^^®    In  Vermont,  logs  on  the  lands  of  an- 
other than  the  owner,  and  not  in  the  visible  possession 
of  any  one,  may  be  transferred  without  any  perceptible 
change  of  possession.**^^     So  property  in  a  warehouse, 
on  storage,  if  ascertained  and   separated  from   other 
property,  and  formally  delivered  to  the  vendee,  may  be 
left  by  him  in  the  same  place.^^''    Where  twelve  thou- 
sand  bushels  of  charcoal   in  pits  were   sold,  and  the 
purchaser  a  few  days  after  the  sale  sent  a  person  to  the 
pits,  and  caused  them  to  be  severally  marked  with  the 
purchaser's  name,  and  the  person  so  sent  remained  in 
charge  for  a  fortnight,  when  he  left,  requesting  a  neigh- 
bor to  look  after  the  property,  it  was  held  that  there 
had  been  a  sufficient  change  of  possession.*^*     The  sale 
by  one  of  several  joint  owners  also  furnishes  an  excep- 
tion to  the  rule  that  there  must  be  a  change  of  posses- 
sion.    If  the  cotenant  selling  is  in  the  sole  possession, 
he  ought  to  give  possession  to  his  veTideo;    but  if  the 
other  cotenants  are  in  possession,  the  vendor   has  no 
right  to  take  it  from  them.     He  may,  therefore,  from 
necessity,  make  a  valid  sale  without  placing  the  prop- 
erty in  the  custody  of  his  vendee.®^^     Where,  however, 
the  cotenant  or  cotenants  making  the  sale,  though  they 

815  Angell  V.  Pickard,  61  Mich.  561. 

816  Merritt  v.  Miller,  13  Vt.  416;  Sanborn  v.  Kittredge,  20  Vt.  622, 
50  Am.  Dec.  58;  Hutching  v.  Gilchrist,  23  Vt.  82;  Kingsley  v.  White, 
57  Vt.  565. 

81T  Cartwright  v.  Phoenix,  7  Cal.  281. 

818  Tognini  v.  Kyle,  17  Nev.  209,  45  Am.  Rep.  442. 

819  Freeman  on  Cotenancy  and  Partition,  sees.  167.  210;  Brown 
V.  Graham.  24  111.  6.30;  Beaumont  v.  Crane.  14  Mass.  400;  Gushing 
V.  Breed,  14  Allen,  380,  92  Am.  Dec.  777;  Criley  v.  Vasel,  52  Mo. 
445. 


735  TERSONAL  niOrERTY  SUBJECT  TO  EXECUTION.       §  154 

do  not  own  the  entire  property,  are  in  possession  there- 
of, they  must,  to  support  the  transfer,  make  a  delivery 
and  change  of  possession  to  the  same  extent  as  if  they 
were  owners   in   severalty,  and    the  abstmce   of   such 
change  of  possession  cannot  be  excused  on  the  ground 
that  tliere  is  another  cotenant  who  may,  in  contempla- 
tion of  law,  be  in  constructive  possrssion  of  the  prop- 
erty, if  his  possession  is  not  actual  and  visible,  and  a 
change  of  possession  may,  therefore,  be  made  pursuant 
to  the  sale.**^**     Property  exempt  from  or  not  subject  to 
execution  cannot  enable  its  owner  to  obtain  a  delusive 
credit,  nor  can  its  secret  sale  b}^  him  operate  as  a  fraud 
on   his  creditors,  since   they   have,  under  nO'  circum- 
stances, a  right  to  seize  it  against  his  will.     They  can 
take  no  advantage  of  the  fact  that  its  sale  was  not  ac- 
companied nor  followed  by  a  corresponding  change  of 
possession.**^^     So,  because  he  cannot  possiblj^  be  de- 
frauded by  it,  a  creditor  will  not  be  permitted  to  attack 
a  sale,  for  want  of  a  change  of  possession,  when   he 
knew  of  such  sale  at  the  time  it  was  made,  and  derived 
a  benefit  from  it,®'^  or  where,  having  like  knowledge,  he 
thereafter  became  a  creditor  of  the  vendor. '^^^ 

§  154.  When  the  Change  of  Possession  must  Com- 
mence.— In  many  of  the  decisions  under  the  statute  of 
Elizabeth,  it  is  said  that  possession  must  accompany 

820  Brown  v.  O'Neil,  95  Cal.  202,  29  Am.  St.  Rep.  Ill;  Howe  v. 
Johnson,  107  Cal.  67. 

821  Patten  v.  Smith..  4  Conn.  450.  10  Am.  Dec.  IGG;  Foster  v.  Mc- 
Gresror,  11  Vt.  595,  34  Am.  Dec.  713;  Anthony  v.  Wado,  1  Bush.  110; 
Morton  v.  Racan.  5  Bush.  334;  Derby  v.  Weyrich.  S  Neb.  174.  30 
Am.  Rep.  S27:  Jewett  v.  Gnyer,  38  Vt.  218;  George  v.  Bassett.  .54 
Vt.  217;  Walcott  v.  Hamilton.  61  Vt.  79;  Isgrigg  v.  Pauley,  148  Ind. 
436. 

822  Parsons  v.  Hatch.  63  N.  H.  .343. 

823  Vanmeter  v.  Estill,  78  Ky.  456. 


§  154       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  73& 

the  deed.  In  some  of  the  state  statutes,  the  require- 
ment is  that  the  possession  be  immediate;  under  others,, 
it  must  be  taken  within  a  reasonable  time.  The  con- 
struction given  these  different  statutes  is  substantially 
identical.  When  the  sale  is  made,  the  vendee  must  pro- 
ceed to  take  possession  of  the  property  as  soon  as  prac- 
ticable, exercising  the  same  degree  of  diligence  that 
usually  is  employed  by  vendees  of  property  of  a  similar 
character  and  in  a  similar  situation.  If  he  does  this,  his 
possession  accompanies  the  sale  within  the  meaning  of 
the  decisions.**"^  "By  an  immediate  delivery  is  not 
meant  a  delivery  instanter;  but  the  character  of  the 
property  sold,  its  situation,  and  all  the  circumstances 
must  be  taken  into  consideration  in  determining 
whether  there  was  a  delivery  within  a  reasonable  time, 
so  as  to  meet  the  requirement  of  the  statute;  and 
this  will  often  be  a  question  of  fact  for  the  jury."  **^^ 
Hence,  if  a  sale  of  a  stock  of  goods  twenty  miles  dis- 
tant be  made  at  nine  o'clock  in  the  evening,  possession 
thereof  taken  pursuant  to  such  sale  at  four  o'clock 
the  next  morning  is  immediate,  within  the  meaning- 
of  the  statute.®^^  Generally,  the  failure  to  take  posses- 
sion in  pursuance  of  a  sale,  either  immediately  or 
within  a  reasonable  time  after  such  sale,  is  held  to 
make  such  sale  either  conclusively  or  prima  facie 
fraudulent.  The  sale  having  been  thus  tainted  with 
fraud,  the  questions  arises  whether  this  taint  may  be 
removed  by  a  possession  subsequently  taken. 

824  Ingraham  v.  Wheeler.  6  Conn.  277;  Meade  v.  Smith,  16  Conn. 
347;  Wilt  v.  Franklin,  1  Binn.  521.  2  Am.  Dec.  474;  State  v.  King. 
44  Mo.  238;  Seymour  v.  O'Keefe,  44  Conn.  132;  Boyd  v.  Pottle,  G.% 
Mo.  App.  374;  Dillan  v.  Kinoald,  70  Mo.  App.  670. 

S25  Samuels  v.  Gorham,  5  Cal.  227;  Carpenter  v.  Clark,  2  Nev, 
246. 

826  Kieinschmidt  v.  McAndrews,  117  U.  S.  2S2. 


737  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  154 

The  better  rule,  we  think,  is,  that  when  the  taking  of 
possession  has  been  so  deferred  that  the  sale  must  be 
denounced  for  constructive  fraud,  its  character  is  irre- 
trievably determined,  and  possession  afterward  taken 
gives  no  life  or  validity  to  that  wiiich  was  before  null 
and  void.**-'''  Doubtless,  however,  the  weight  of  the 
authorities  is  against  the  rule  as  we  have  stated  it. 
They  maintain  that  a  sale  is  never,  because  of  a  want 
of  a  change  of  possession,  void  as  against  creditors  gen- 
erally,  but  only  against  those  who  have  cither  reduced 
their  debts  to  judgments,  or  have  in  some  manner  ob- 
tained liens  for  the  enforcement  thereof.  If,  when  the 
judgments  are  rendered,  or  the  attachment  or  other 
liens  obtained,  the  sale  has  been  consummated  by  tak- 
ing possession,  it  must,  according  to  tliese  authorities, 
be  treated  as  valid,  though  such  possession  did  not  ac- 
company the  sale.*^^**     These  authorities  seem  to  ignore 

827  Gibson  v.  Love,  4  Fla.  217;  Carpenter  v.  ;^^ayer,  5  Watts,  483; 
Hackett  v.  Manlove.  14  Cal.  So;  Chouory  v.  Palmer,  6  Cal.  119,  65 
Am.  Dee.  403;  Edmondson  v.  Hyde.  2  Saw.  209;  7  Nat.  Bank.  Jlog. 
4;  In  re  Morrill,  2  Saw.  ,3.59;  8  Nat.  Bank.  Resr.  120;  Franklin  v. 
Gumersell,  9  Mo.  App.  89;  Watson  v.  Rodgers,  .53  Cal.  401. 

828  Kendall  v.  Samson,  12  Vt.  515;  Read  v.  Wilson,  22  111.  377,  74 
Am.  Dee.  159;  Calkins  v.  Lockwood,  IG  Conn.  27G.  41  Am.  Dec.  143; 
Blake  v.  Graves,  18  Iowa,  312;  Clute  v.  Steel.  G  Nev.  325;  Cruik- 
shanks  v.  Cogswell,  2G  111.  3G6;  Gilbert  v.  Decker,  53  Conn.  401; 
Sydnor  v.  Gee,  4  Leigh,  .535;  Hall  v.  Gaylor.  37  Conn.  ,5.50;  Hardin 
V.  Sisson,  3G  111.  App.  383;  Oliver  v.  Reading  I.  Co..  170  Pa.  St. 
390;  Poling  v.  Flanagan.  41  W^  Ya.  191;  Macintosh  v.  Smiley,  32 
Mo.  App.  125.  But  a  subsequent  case  proclaims  a  rule  absolutely 
inconsistent  with  that  stated  in  the  above  decision.  In  Link  v.  Har- 
rington, 41  Mo.  App.  635,  the  court  said:  "Next,  it  is  error  to  sup- 
pose that  the  rule  laid  down  in  Nash  v.  Normeut,  5  Mo.  App.  54.5, 
and  followed  by  the  supreme  court  in  Greeley  v.  Reading.  74  Mo. 
309,  and  subsequent  cases,  declaring  that  a  mortgage  is  purged  of 
its  fraud  by  subsequent  delivery,  can  be  extended  to  sales  of  per- 
sonal property.  Delivery  and  change  of  possession  are  essential 
ingredients  of  every  sale  when  it  is  sought  to  uphold  it  against  the 
creditors  of  the  vendor,  and  to  hold  that  delivery  can  be  made  at 

Vol.  I.— 47 


§  154       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  166 

the  chief  object  sought  by  the  statutes  and  decisions 
requiring  the  change  of  possession  to  accompany  the 
sale.  That  object  was  to  suppress  fraud  by  preventing 
vendors  from  obtaining  a  false  and  delusive  credit  by 
remaining  in  apparent  ownership  of  property  in  which 
they  had  ceased  to  have  any  interest.  The  most  equi- 
table rule  upon  the  subject  is  that  enacted  in  section 
3440  of  the  present  Civil  Code  of  California,  as  follows: 
"Every  transfer  of  personal  property,  other  than  a 
thing  in  action,  or  a  ship  or  cargo  at  sea  or  in  a  foreign 
port,  and  every  lien  thereon,  other  than  a  mortgage 
when  allowed  by  law,  and  a  contract  of  bottomry  or  re- 
spondentia, is  conclusively  presumed,  if  made  by  a 
person  having  at  the  time  the  possession  or  control  of 
the  property,  and  not  accompanied  by  an  immediate 
delivery,  and  followed  by  an  actual  and  continued 
change  of  possession  of  the  things  transferred,  to  be 
fraudulent,  and  therefore  void,  against  those  who  are 
his  creditors  while  he  remains  in  possession,  and  the 
successors  in  interest  of  such  creditors,  and  against  any 
persons  on  whom  his  estate  devolves  in  trust  for  the 
benefit  of  others  than  himself,  and  against  purchasers 
or  encumbrancers  in  good  faith  subsequent  to  the 
transfer."  But  even  in  those  states  where  the  want  of 
an  immediate  delivery  cannot  be  suj)plied  by  a  subse- 
quent one,  there  is  an  inclination  to  avoid  a  rigid  ap- 
plication of  the  rule.  Hence,  where  furniture  was  pur- 
chased, and  the  vendee  took  no  possession  until  after 
two  or  three  weeks,  during  which  he  was  hunting  for  a 
suitable  house  to  live  in,  the  court  refused  to  award 
the  property  to  a  creditor  of  the  vendor  whose  judg- 

any  time  prior  to  the  seizure  of  the  goods  l\v  tho  voiulor's  creditors 
would,  in  effect,  wholly  abrogate  the  statute  ou  ihe  subject  of  fraud- 
ulent conveyances." 


739  PERSONAL  PROPERTY  SUBJECT  TO  PLKECUTIOX.        §  lo5 

ment  and  levy  were  eight  or  nine  months  subsequent 
to  the  sale.**^** 

§  155.  What  is  a  Sufficient  Change  of  Possession?— 
The  response  to  this  quevStion,  so  far  as  it  can  be  ex- 
pressed in  general  terms,  is,  that  the  clianfte  of  posses- 
sion must  be  open,  visible,  actual,  and  substantial,  so 
that  persons  in  the  habit  of  seeing  the  property  will  in- 
fer that  a  change  of  ownership  has  taken  jjlace.**^**  "In 
no  case  that  we  are  aware  of  has  the  supreme  court  laid 
down  a  rule  requiring  less  than  that  the  purchaser 
must  have  that  possession  which  places  him  in  the  re- 
lation to  the  property  which  owners  usualh^  are  to  the 
like  kind  of  property."  **^^  "The  change  necessary  is 
only  one  which  the  creditors,  upon  reasonable  inquiry, 
can  ascertain — such  a  change  of  the  possession,  or  such 
a  divesting  of  the  possession  of  the  vendor,  as  any  man 
knowing  the  facts,  which  could  be  ascertained  upon 
reasonable  inquiry,  would  be  bound  to  know  and  un- 
derstand was  the  result  of  a  change  of  ownership — 
such  a  one  as  he  could  not  reasonably  misappre- 
hend." *^^^  "The  vendee  must  take  the  actual  posses- 
sion, and  the  possession  must  be  open,  notorious,  and 
unequivocal,  such  as  to  apprise  the  community,  or  those 
who  are  accustomed  to  deal  with  the  party,  that  the 

829  Smith  V.  Stern,  17  Pa.  St.  360.  See,  also.  McVieker  v.  May, 
3  Pa.  St.  224,  45  Am.  Dec.  637. 

530  Rockwood  V.  Collamer.  14  Vt.  141;  Kirtland  v.  Snow,  20  Conn. 
23;  Hoof  smith  v.  Cope,  6  Whart.  53;  Cadbury  v.  Nolen,  5  Pa.  St. 
320;  Cook  v.  ISfann.  0  Colo.  21;  Orady  v.  Baker.  3  Dak.  296;  State  v. 
Hall,  45  Mo.  App.  298;  State  v.  Flynn,  66  Mo.  App.  373;  Freetlmaa 
V.  Morrow  S.  M.  Co.,  122  Pa.  St.  25;  Stephens  v.  GitToid.  137  Pa.  St. 
219.  21  Am.  St.  Rep.  868;  Dooley  v.  Pease,  88  Fed.  Rep.  446;  60 
U.  S.  App.  248;  Shauer  v.  Alterton,  151  U.  S.  607. 

831  Woods  V.  Bucboy,  29  Cal.  472. 

832  Stephenson  v.  Clark,  20  Vt.  027;  Burrows  v.  Stebbins,  26  Vt. 
659. 


§  155       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  740 

goods  have  changed  hands,  and  that  the  title  has 
passed  to  the  purchaser.  This  must  be  determined  by 
the  vendee  using  the  usual  marks  and  indicia  of  owner- 
ship, and  occupying  that  relation  to  the  thing  sold 
which  owners  of  property  generally  sustain  to  their 
own  property."  ***^^  "It  was  intended  that  the  vendee 
should  immediately  take  and  continuously  hold  th^e 
possession  of  the  goods  purchased,  in  the  same  manner, 
and  accompanied  with  such  plain  and  unmistakable 
acts  of  possession,  control,  and  ownershij^,  as  a  prudent 
bona  fide  purchaser  would  do  in  the  exercise  of  his 
rights  over  the  property,  so  that  all  persons  might  have 
notice  that  he  owned  and  had  possession  of  the  prop- 
erty."' *^^'*  "The  possession  of  the  vendee  must  be  open 
and  unequivocal,  carrying  with  it  the  usual  marks  and 
indications  of  ownership  by  the  vendee.  It  must  be 
such  as  to  give  evidence  to  the  world  of  the  claim  of  the 
new  owner.  He  must,  in  other  words,  be  in  the  usual 
relation  to  the  property  which  owners  of  goods  occupy 
to  their  property.  This  possession  must  be  continuous 
— not  taken  to  be  surrendered  back — not  formal,  but 
substantial."  ****^  "There  must  be  such  change  in  the 
apparent  custody  of  the  property  as  to  put  one  dealing 
with  the  vendor  with  respect  to  it  upon  inquiry,  or  such 
at  least  as  might  suggest  a  change  of  ownership."  **'^* 
It  is  not  sufficient  that  the  vendee  assume  control  of  the 
property  in  such  a  manner  that  the  vendor  cannot 
legally  interfere  with  it,  if  the  transaction  is  "wanting 
in  the  publicity,  openness,  or  notoriety  which  would 

833  Claflin  V.  Rosenber.u.  42  Mo.  440;  48  Mo.  m?,.  07  Am.  Dec.  330; 
Lesem  v.  Herriford,  44  Mo.  323;  Allen  v.  Massey.  2  Abb.  60. 

834  Lay  V.  Neville,  2.t  Cal.  552. 

835  Stevens  v.   Invin,   15   Cal.   .50G,   76   Am.   Doe.   .500;   Engles   v. 
Marshall,  19  Cal.  320;  Cahoon  v.  Marshall,  25  Cal.  197. 

836  iiesthal  V.  Myles,  53  Cal.  623. 


741  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  155 

tend  to  warn  other  members  of  the  community,  or  ad- 
vertise the  claim  of  the  vendee."  **^''  The  marking  of 
goods  is  not  equivalent  to  a  change  of  possession.*^** 
"Purchasers  must  learn  and  understand  that  if  they 
purchase  property,  and,  without  a  legal  excuse,  permit 
the  possession  to  remain  in  fact  or  apparently  and  vis- 
ibly the  same,  or  if  changed  for  a  brief  period,  to  be  in 
fact  or  apparently  and  visibly  restored,  and  thereafter, 
in  fact  or  apparently  and  visibly  continued  as  before 
the  sale,  they  hazard  its  loss  by  attachment  for  the  debts 
of  the  vendor,  as  still,  to  the  view  of  the  world  and  in 
the  eye  of  the  law,  as  it  looks  to  the  rights  of  creditors 
and  the  prevention  of  fraud,  his  property."  ^^^  "The 
I)urpose  of  the  statute  is,  that  there  shall  be  such  a 
change  of  possession  as  will  give  to  parties  dealing 
with  the  seller  or  buyer  notice  of  the  transaction.  It 
is  such  transfer  of  dominion  over  the  pr{)i)erty  as  to 
impart  notice  to  persons  dealing  with  reference  to  the 
property  that  the  title  has  been  transferred,  or  such 
possession  as  will  put  such  persons  in  possession  of 
such  facts  as  will  lead  to  inquiry  as  to  the  ownership. 
It  is  sometimes  said  that  the  possession  must  be  such 
as  to  be  notice  to  the  world.  This  does  not  mean  notice 
to  the  public  generally,  but  to  those  who  propose  to 
purchase  the  property  or  deal  with  reference  to  it."  '*'*** 
It  is  not  sufficient  that  the  vendee  is  entitled  to,  and 
can  rightfully,  at  his  pleasure,  take  possession  of,  the 
property  purchased. ^^^'^  "Where  there  is  no  fixed  rule 
as  to  what  is  necessary  to  constitute  such  a  delivery 
and  possession  of  chattels  as  is  required  by  the  statute, 

837  Ibid. 

83S  Stewart  v.  Nelson.  79  Mo.  .^22. 

S39  Norton  v.  Doolittle.  32  Conn.  405. 

840  Deere  v.  Needles.  G.")  Iowa.  lO.^. 

941  Etehepare  v.  Aguirre,  91  Cal.  2SS.  2r^  Am.  St.  Rep.  180. 


§  155       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  742 

the  particular  facts  and  circumstances  must  govern 
each  case."  ^*  ^  If,  at  the  execution  of  a  bill  of  sale, 
the  vendor  declares,  in  the  presence  of  witnesses,  that 
he  delivers  possession  of  the  property,  consisting  of  cer- 
tain horses  and  wagons,  to  the  purchaser,  and  there- 
upon gives  him  the  key  of  the  stable  in  which  they  are 
kept,  and  goes  and  stays  away,  and  the  purchaser  takes 
possession,  puts  a  man  in  charge  for  himself,  re-em- 
ploys the  drivers  who  had  been  before  in  the  vendor's^ 
employment,  who,  on  their  part,  accept  the  employ- 
ment and  act  thereunder,  collecting  bills  for  him,  these 
facts  are  suflScient  to  support  a  verdict  sustaining  the 
sale.**^  ^  If  one  purchases  a  stock  of  goods  in  a  store, 
enters  into  possession,  re-employs  the  clerks,  has  new 
signs  painted  with  his  name  thereon,  hanging  one  over 
the  sidewalk  and  another  within  the  store,  receives  an 
assignment  of  the  policies  of  insurance,  takes  out  a 
dealer's  license  for  the  conducting  of  the  business,  and 
gives  the  clerks  instructions  for  its  management,  this 
is  a  sufficient  change  of  possession,  though  subse- 
quently the  vendor  is  employed  to  take  charge  and  as- 
sist in  the  management  of  the  business.^'*^  Merely 
changing  the  name  of  the  store  in  which  a  stock  of 
goods  is  kept  is  not  a  sufficient  change  of  possession.^"** 
In  Men-ill  v.  Hurlburt,  63  Cal.  494,  the  property  sold 
was  a  quantity  of  loose  hay  stored  in  a  barn  owned  by 
the  vendor.  The  vendee  examined  the  hay  at  the  time 
of  the  sale,  and  there  was  a  verbal  delivery.  The  ven- 
dee also  placed  a  man  in  charge  of  the  property,  but 
the  barn  continued  in  the  possession  and  under  the 
control  of  the  vendor.     A  portion  of  the  hay  was  sub- 

S4ia  Blish  V.  McCornick,  15  Utah,  188. 
s^ib.Tanney  v.  Howarrl.  IHO  Pa.  St.  :?39. 

842  Levy  V.  Scott,  11.5  Cal.  .39. 

843  Klee  V.  Reitzenberger,  23  W.  Va.  740. 


743  TERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  155 

sequently  removed,  but  the  part  in  controversy  re- 
mained in  the  barn  until  it  was  attached  by  a  creditor 
of  the  vendor,  about  three  months  after  the  sale.  The 
trial  court  found  that  there  was  not  an  immediate  de- 
livery, and  an  actual  and  continued  change  of  posses- 
sion, and  the  supreme  court  held  that  the  finding  was 
justified  by  the  evidence. 

The  possession  of  the  vendee  must  be  exclusive,  and 
not  in  common  with  the  vendor.®*'*  "There  must  be  a 
bona  fide,  substantial  change  of  possession.  It  is  a 
mere  mockery  to  put  in  another  person  to  keep  posses- 
sion jointly  with  the  former  owner."  ^^''  If  the  posses- 
sion of  the  vendor  and  vendee  after  the  sale  "is  mixed 
or  concurrent,  it  is  insufficient  to  indicate  an  open 
and  complete  transfer  of  the  possession."  ®*^    "Where 

844  Brawn  v.  Keller,  43  Pa.  St.  104,  82  Am.  Dec.  554;  3  Grant  Cas. 
144;  StacUler  v.  Wood,  24  Tex.  622;  Kendall  v.  Samson,  12  Vt.  515; 
Wooten  V.  Clark,  28  Miss.  75. 

845  Babb  V.  Clemson,  10  Serg.  &  R.  428,  13  Am.  Dec.  G84;  Wordall 
V.  Smith,  1  Camp.  333. 

846  Worman  v.  Kramer,  73  Pa.  St.  380;  Sumner  v.  Dalton,  58  N.  H. 
295;  Allen  v.  Masscy,  17  Wall.  351;  Plaisted  v.  Holmes,  58  N.  H. 
293.  In  Hull  v.  Sigsworth,  48  Conn.  258,  40  Am.  Rep.  167,  the 
vendee  employed  by  the  vendor  on  the  latter's  farm  agreed  to  buy 
him  a  horse,  and  apply  his  wages  in  payment.  Two  years  after- 
ward the  vendor  sold  and  delivered  the  horse  to  the  vendee,  taking 
his  receipt  in  full  of  wages  earned  in  payment.  The  vendee  con- 
tinued in  tlie  vendor's  employment  on  the  farm,  keeping  the  horse 
in  the  vendor's  stable,  taking  care  of  it,  breaking  it.  and  shoeing  it, 
paying  the  vendor  for  the  feed.  It  was  held  that  there  was  not  a  suf- 
ficient change  of  possession  as  against  the  creditors  of  the  vendor. 
But  see  Webster  v.  Anderson,  42  Mich.  554,  36  Am.  Rep.  452,  where 
itwas  agreed  between  a  farmer  and  his  laborer  that  the  latter  should 
accept  certain  hogs  in  payment  for  his  services.  The  hogs  were 
pointed  out,  but  were  to  remain  in  the  i)asture  with  other  hogs  until 
an  opportunity  should  le  found  for  selling  tliem.  It  was  held  that 
thiswas  a  sufficient  transfer  of  the  possession  to  constituteadelivery 
under  the  circumstances.  Cooley,  J.,  in  delivering  the  opinion  of  the 
court,  said:  "It  was  all  the  delivery  that  could  well  have  been  made 
under  the  circumstances,  without  requiring  Anderson  to  remove  the 


§  155       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  744 

there  is  a  joint  possession  by  the  vendor  and  the  vendee, 
the  property  is  liable  to  attachment  upon  the  vendor's 
debts  if  a  candid  observer  would  be  at  a  loss  to  deter- 

liogs  from  the  farm  where  he  was  employed  to  some  other  place 
where  they  would  have  been  less  iu  his  possession  than  where  they 
were;  and  for  this  there  could  have  been  no  sutficieut  reason."  In 
Koberts  v.  Radcliff,  35  Kan.  502,  a  lawyer  and  real  estate  agent 
bought  a  stock  of  millinery  goods  in  a  distant  city,  and  returned 
home  on  the  same  day,  without  moving  the  goods,  changing  the  sign 
on  the  store  or  giving  any  notice  to  the  public  that  there  had  been 
a  change  of  proprietorship,  but  leaving  to  manage  the  new  business 
the  same  persons  who  had  been  in  charge  before  the  sale.  And 
it  was  held  that  there  was  sufficient  evidence  to  justify  the  jury  in 
finding  the  sale  fraudulent  as  against  the  creditors  of  the  vendors. 
So  in  Wolf  V.  Kahn.  G2  Miss.  814,  where  the  business  after  the 
conveyance  Avas  carried  on  just  as  before  the  sale,  and  there  was 
nothing  to  indicate  that  the  former  clerk  had  become  the  owner, 
and  the  former  owner  a  clerk,  but,  so  far  as  the  public  could  know 
from  appearances,  the  vendor  was  still  the  owner  of  the  business, 
and  the  fact  of  the  sale  was  known  to  two  persons  only  besides 
the  parties  to  it,  the  sign  over  the  store  remaining  the  same,  and  the 
license  of  the  former  owner  remaining  posted  up  in  the  store  as 
before  the  sale,  it  Avas  held  that  there  was  not  sufficient  evidence 
of  a  change  of  possession  as  against  the  vendor's  creditors.  But 
in  Ware  v.  Hirsch,  19  111.  App.  274.  where  certain  creditors  of  a 
debtor  in  failing  circumstances  bought  out  his  store  and  goods,  and 
put  one  of  their  number  in  possession  thereof,  who  opened  a  new 
set  of  books,  took  down  the  debtor  s  sign,  employed  the  former 
clerks,  and  paid  the  rent,  etc.,  it  was  held  that  there  was  sufficient 
evidence  of  a  change  of  possession  to  satisfy  the  requirements  of 
the  Illinois  statute.  In  Wilson  v.  Hill.  17  Nev.  4€1,  the  mortgagor 
of  324  cords  of  wood  lying  on  the  roadside  went  with  the  mortgagee 
to  the  place,  and  said  to  him:  "There  is  the  wood.  I  deliver  it  to 
you  as  security  for  the  money  loaned."  The  wood  was  not  marked, 
nor  was  any  one  put  in  charge  of  it,  but  the  mortgagee  went  occa- 
sionally to  see  that  no  one  interfered  with  it.  It  was  held  that 
there  was  not  a  sufficient  change  of  possession  as  against  creditors. 
In  Betz  v.  Conner,  7  Daly,  550,  the  purchaser  at  execution  sale  left 
the  property  after  the  sale  in  the  same  premises,  where  it  Avas  used 
by  the  execution  debtor  as  it  had  been  used  by  him  before  the  sale. 
and  over  which  he  exercised  the  same  control  as  before,  except 
that  after  the  sale  he  acted  as  agent  of  the  purchaser;  and  it  was 
held  that  the  change  of  possession  was  constructive  only,  and  not 
actual,  and  that  the  sale  was,  therefore,  presumptively  fraudulent 
as  to  the  creditors  of  the  former  owner.     In  McCarthy  v.  McDer- 


745  PERSONAL  PllOl'ERTY  SUBJECT  TO  EXECUTION.        §  155 

mine  wliich  of  the  two  has  the  chief  control  and  posses- 
sion of  it,  and,  in  case  of  doubt,  the  hiw  resolves  the 
doubt  against  the  party  who  should  make  the  change 
of  possession  open  and  visible."  ^^' 

It  may  be  that  the  vendor  and  vendee  are  occupants 
of  the  same  premises,  and  even  members  of  the  same 
family.  If  such  be  the  case,  it  will  require  great  care 
to  give  a  transfer  from  one  to  the  other  that  notoriety 
which  will  warn  others  of  the  change  of  ownership.  In 
some  instances,  as  where  the  transfer  was  from  a  pa- 
rent to  his  minor  child,  it  has  been  held  that  the  posses- 

mott.  10  Daly,  4r)0.  tho  vendor,  after  the  exotutiou  and  delivery  of 
a  bill  of  sale  of  the  furniture  of  a  boardiuji-house,  went  with  the 
purchaser  to  the  house,  who  stated  to  him  that  he  took  possession 
of  the  property,  and  at  the  same  time  delivered  to  the  vendor's  wife 
a  writing  constituting  her  a  bailee  of  the  property;  but  there  was  no 
change  in  the  apparent  ownership,  and  nothing  to  disclose  the  fact 
that  the  title  had  been  transferred.  It  was  held  that  the  sale  was 
void  as  against  creditors,  and  that  it  was  error  to  submit  the  ques- 
tion of  change  of  possession  to  the  jury.  In  Bentz  v.  Hockey,  69 
Pa.  St.  71,  the  vendor  was  the  lessee  of  a  tannery,  and  after  the  sale 
the  vendee  paid  the  rent  for  the  remainder  of  the  year,  but  the 
vendor  remained  on  the  premises  as  before,  and  worked  out  and 
sold  the  stock,  paying  the  money  received  therefor  to  the  vendee. 
It  was  held  that  there  was  not  sutiicient  change  of  possession  to 
make  the  sale  valid  as  against  creditors.  But  in  Crawford  v.  Da- 
vis, 99  Pa.  St.  570,  the  vendor  was  an  aged  and  infirm  man  re- 
siding on  a  farm  under  a  parol  lease,  his  son  residing  with  him. 
By  reason  of  infirmity  and  poverty,  the  fathi-r  was  unable  to  carry 
on  the  farm,  and  he  therefore  sold  all  the  property  on  the  farm 
to  his  son,  in  consideration  of  the  vendee's  agreeing  to  support  his 
father  and  mother  and  pay  the  rent.  The  son  after  the  sale  took 
charge  of  the  farm,  bought  and  put  additional  stock  on  it.  used 
the  whole  of  it,  paid  the  rent,  supported  his  father  until  he  died, 
and  continued  to  support  his  motlier,  hired  and  paid  labor  to  work 
the  farm,  and  lived  upon  it.  It  was  held  that  the  trial  court  erred 
In  holding  that  the  evidence  of  change  of  possession  was  not  suf- 
ficient as  against  creditors  of  the  vendor,  and  the  supreme  court 
decided  that  the  case  ought  to  have  been  left  to  the  jury  to  decide, 
under  the  circumstances,  whether  the  sale  was  in  good  faitl".  or 
merely  colorable. 
847  W' heeler  v.  Selden,  G3  Vt.  429,  2o  Am.  St.  Itep.  771, 


§  155       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  746 

sion  subsequently  held  by  the  former  must  be  deemed 
the  possession  of  the  latter;  and  the  transfer  was  there- 
fore sustained,  although  no  notorious  or  other  apparent 
change  of  possession  followed  the  transfor."^^**  While 
the  enforcement  of  the  rule  requiring  a  change  of  pos- 
session to  accompany  a  transfer  ma}'  occasion  some 
hardship  when  the  transaction  is  between  relatives  or 
others  occupying  the  same  premises,  yet  it  ought  to  be 
remembered  that  it  is  between  persons  thus  related  or 
situated  that  a  fraudulent  or  simulated  transfer  is  most 
likely  to  be  conceived  and  atteniftted  to  be  made  effect- 
ive against  creditors.  Such  a  transfer  is  properly 
viewed  with  suspicion,  and  will  be  sustained  only 
where  the  evidence  shows  that  "the  vendee  assumed 
such  control  of  the  property  as  to  reasonably  indicate  a 
change  of  ownership."  ^^^  If  the  change  of  possession 
is  not  sufficient  to  indicate  the  change  of  ownership, 
the  transfer  is  invalid  as  against  creditors,  though  the 
vendor  and  vendee  live  in  the  same  liouse,^^^  aijd  are 
members  of  the  same  family.**^*  G.,  the  owner  of  cer- 
tain horses  and  cattle,  sold  them  to  P.  on  Saturday. 
On  Sunday  and  Monday  ensuing,  the  stock  was  col- 

848  Howard  v.  Williams,  1  Bail.  575,  21  Am.  Dec.  483;  Dodd  v. 
McCraw,  8  Arlv.  83.  46  Am.  Dec.  301. 

849  Crawford  v.  Davis,  99  Pa.  St.  579;  McChire  v.  Forney,  107  Pa. 
St.  414. 

850  Hull  V.  Sigsworth,  48  Conn.  258,  40  Am.  Rep.  1G7;  Lawrence 
V.  Burnham,  4  Nev.  .364,  97  Am.  Dee.  540.  In  this  case,  vendor 
and  vendee  lived  in  different  rooms  of  the  same  house.  They  held 
commoji  possession  of  a  barn,  in  which  the  vendor  had  grain.  After 
selling  this  grain,  the  vendor  continued  to  have  a  key  to  the  barn, 
and  to  go  in  and  out  at  pleasure.  The  grain  remained  in  the  same 
bin  as  before  the  sale.  It  was  held  that  there  was  no  sufficient 
delivery. 

851  Stiles  V.  Shumway,  IG  Vt.  435;  Jarvis  v.  Davis,  14  B.  Moru 
529,  61  Am.  Dec.  160. 


747  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  155 

leetcd  together.  On  Tuesday  T.,  with  G.  and  family, 
started  with  the  property  en  route  for  a  distant  pai-t 
of  the  state,  G.  riding  one  of  the  horses  he  had  sold, 
and  his  family  accompanying  him  in  a  wai^ou  drawn 
by  another  horse  embraced  in  the  same  sale.  When 
they  had  proceeded  thirty  miles  on  their  journey  the 
stock  was  attached  as  the  propertj^  of  G.  It  was  held 
that  these  facts  were  such  that  the  jury  ought  to  have 
found  the  sale  fraudulent,  and  its  verdict  in  favor  of 
the  vendee  was  vacated,  and  a  new  trial  granted.^^^  A 
father  sold  to  his  widowed  daughter,  residing  in  his 
family,  certain  cattle  then  running  at  large  on  a  range 
of  very  considerable  extent.  As  soon  as  she  purchased, 
she  began  to  ride  around  and  look  after  them  as  they 
ran  upon  the  range,  just  as  her  father  had  previously 
done,  and  performed  all  the  duties  pertaining  to  an 
owner  similarly  circumstanced  and  in  charge  of  and 
owning  an  interest  in  cattle  running  on  a  range  of  like 
extent.  She  also  sent  notices  to  other  persons  inter- 
ested in  the  cattle,  informing  them  of  her  purchase  of 
her  father's  interest.  It  was  held  that  these  facts  con- 
stituted a  sufficient  delivery  and  change  of  possession 
to  support  the  sale  as  against  the  creditors  of  the 
fat  her. ^^=* 

The  difficulty  of  making  an  open,  visible,  and  notori- 
ous change  of  possession  after  a  transfer  from  a  hus- 
band to  his  wife  is  often  very  great,  because,  before  the 
transfer,  he  is  usually  in  the  actual,  visible  possession 
of  the  property,  and,  as  he  is  the  person  most  naturally 
chosen  to  manage  her  business,  he  is  likely  to  be  found 
in  apparent  possession  after  the  sale.  In  truth,  it  may 
be  almost  impossible  to  give  her  the  beneficial  enjoy- 

852  Recli  V.  McClure.  47  Cal.  612. 
863  Halt  V.  Meado,  84  Cal.  244. 


§  155        rEIlSOXAL  PROrEUTY  SUBJECT  TO  EXECUTION.  748 

ment  of  the  property  unless  slie  is  permitted  to  author- 
ize him  to  care  for  and  to  be  in  the  visible  possession 
thereof.  Nevertheless,  we  believe  there  is  no  dissent 
from  the  proposition  that  a  transfer  of  chattels  from  a 
husband  to  his  wife  must  be  followed  by  an  actual  and 
continued  change  of  possession,  though  the  circum- 
stance that  the  parties  are  husband  and  wife  may 
doubtless  be  taken  into  consiideration.  Indeed,  it  has 
been  said:  "The  reason  of  the  rule,  which  is  to  prevent 
fraudulent  transfers  of  property,  applies  more  strongly 
to  transactions  between  husbands  and  wives  than  to 
those  between  other  persons,  because  of  the  greater 
facility  for  the  commission  of  frauds  of  this  character 
between  the  former."  **^*  "The  fact  that  a  vendor  and 
vendee  are  husband  and  wife  or  father  and  child  is 
no  reason  why  the  provisions  of  the  statute  should  re- 
ceive a  more  liberal  construction.  These  conditions 
give  the  statute  no  additional  elasticity.  The  rule  of 
construction  is  the  same  in  all  cases,  and  the  relation 
between  the  parties  is  a  matter  wholly  immaterial."  ^^^ 
It  is  not,  however,  necessary, to  consummate  the  change 
of  possession  required  to  support  a  transfer  of  title 
from  a  husband  to  his  wife,  that  they  abandon  their 
marital  relations,  or  cease  to  live  under  the  same  roof, 
or  that  he  should  not  be  seen  in  the  vicinity  of  the  prop- 
erty transferred.  "There  is  much  personal  property 
connected  with  the  household  of  a  husband  and  wife, 
and  used  by  them  in  common,  that  may  be  said  to  be, 
in  a  certain  sense,  in  their  joint  possession,  and  where- 
by an  open,  notorious,  and  unequivocal  change  of  pos- 
session, such  as  is  required  by  statute  between  an  or- 

854  Wheeler  v.  Selden,  G3  Vt.  429,  2.5  Am.  St.  Rep.  771. 

«55  Murphy  v.  Mulgrew,  102  Cal.  547,  41  Am.  St.  Rep.  200;  citing 
Mc-Kee  v.  Garcelon,  00  Me.  105,  11  Am.  Rep.  200;  O'Kaue  v.  Whelun, 
124  Cal.  200,  71  Am.  St.  Rep. 


749  TEKSONAL  PROPERTY  SUBJECT  TO  EXECUTION.        §  155 

dinary  vendor  and  vendee,  could  not  well  be  estab- 
lished by  evidence.  There  must  be  a  change  of  pos- 
session in  fact,  but  the  difficulty  lies  in  making  it  ap- 
parent, and  in  passing  on  the  validity  of  a  statutory  sale 
of  personal  property,  when  the  vendor  and  vendee  are 
husband  and  wife,  I  think  regard  should  be  had  to  that 
exceptional  and  peculiar  relationship.  If  the  ai-ticle 
be  a  bureau  or  dressing-case  in  their  bedroom,  it  could 
not  be  expected  that  it  should  be  given  up  to  the  use 
of  one  to  the  exclusion  of  the  other,  or  that  it  should 
be  changed  to  some  other  apartment.  The  statute  was 
enacted  to  avoid  imposition  and  fraud,  as  well  as  may 
be,  by  compelling  a  change  of  possession  contempo- 
raneous with  a  change  of  ownership,  but  when  we  con- 
sider the  situation  of  husband  and  wife  as  vendor  and 
vendee,  as  regards  property  in  their  domestic  use.  we 
find  that  there  cannot  be  that  open  and  notorious 
change  of  possession  required  in  ordinary  cases.  So, 
too,  at  least  in  most  instances,  the  same  may  be  said 
of  property  under  the  supervision  of  the  husband,  such, 
ordinarily,  as  livestock  on  a  farm.  The  situation  of 
the  parties  is  such  that  there  cannot  be  had  that  evi- 
dence of  change  of  possession  which  would  be  obtain- 
able in  ordinary  cases.  Unless,  then,  we  are  prepared 
to  say  that  there  cannot  be  in  this  state  a  sale  of  per- 
sonal proper-ty  between  husband  and  wife,  we  are  com- 
pelled to  recognize  the  exceptional  situation,  as  vendor 
and  vendee,  of  such  parties."  ^^^  Where  a  wife,  own- 
ing cattle,  bought  from  her  husband  hay  standing  in 
stacks  on  lands  occupied  by  them  as  their  homestead, 
and  fed  it  to  her  cattle,  or  commenced  to  do  so,  exercis- 
ing over  the  property  bought  the  same  rights,  and  us- 

886  Elliott  V.  Keith,  32  Mo.  App.  119. 


§  155       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  750 

ing  it  in  the  same  manner  as  would  have  been  proper 
and  usual  had  a  stranger  bought  it,  it  was  held  that  a 
sufficient  change  of  possession  had  taken  place.*®''  A 
liusband  gave  to  his  wife  a  buggy  and  a  mare  and  colt, 
in  good  faith  and  while  abundantly  solvent.  This 
property  was  subsequently  used  by  both.  The  hus- 
band at  all  times  represented,  and  claimed  that  it  be- 
longed to  his  wife,  and  when  it  was  loaned  to,  or  used 
by,  any  other  person,  it  was  by  her  direction  or  con- 
sent, and  not  by  that  of  her  husband,  and  the  property 
was  generally  known  and  recognized  as  hers.  The 
court  said:  "In  what  other,  better  way  could  a  wife, 
consistent  with  her  relations  as  wife,  have  maintained 
an  immediate  delivery  of  possession  followed  by  an 
actual  change  of  possession?"  and  sustained  the  trans- 
fer as  against  the  claims  of  her  husband's  creditors.*^® 
There  can  be  no  reasonable  doubt  of  the  sufficiency 
of  the  change  of  possession  when  the  husband,  after 
making  a  transfer  of  chattels  to  his  wife,  leaves  the 
premises  where  they  are,  and  makes  his  home  else- 
where, she  remaining  and  exercising  coutrol  over  the 
property.**^'-* 

The  vendee  must  not  leave  his  vendor  in  possession 
of  the  property  as  his  agent,®^"  nor  as  his  warehouse- 
man.**"* If  the  vendee  was,  before  the  sale,  in  posses- 
sion as  agent,  he  must,  in  some  way,  make  known  to 

858  Porter  v.  Bucher,  98  Cal.  454;  see,  also,  Roberts  v.  Burr  (Cal.), 
54  Pac.  Rep.  849;  Wyatt  v.  Wyatt,  31  Or.  531. 

85S  Morgan  v.  BaU,  81  Cal.  93,  15  Am.  St.  Rep.  34. 

859  Carter  v.  McQuade,  83  Cal.  274;  Pierson  v.  Quist,  79  Iowa,  54. 

860  Fitzgerald  v.  Gorham,  4  Cal.  289,  60  Am.  Dec.  616;  Bacon  v. 
Scannell,  9  Cal.  271.  But  see  England  v.  Com.  Ins.  Co.,  16  La. 
Ann.  5. 

861  Stewart  v.  Scannell,  8  Cal.  80. 


751  PERSONAL  PROrERTY  SUBJECT  TO  EXECUTION.        §  Io5 

the  public  the  change  of  ownerslii}).^^^  Whore  a  pur- 
chase is  made  of  a  store  or  other  place  of  business,  it  is 
not  necessary  that  the  vendor's  employes  be  excluded 
from  the  place.  If  the  vendee  takes  possession  by  ex- 
ercising all  the  rights  of  a  proprietor,  and  by  so  con- 
ducting himself  toward  the  business  as  to  create,  in 
his  favor,  all  the  marks  of  ownersliip  usually  existing 
in  favor  of  a  proprietor  of  similar  business  establish- 
ments, he  may  safely  re-employ  the  same  clerks  and 
other  assistants  which  were  formerly  in  the  service  of 
his  vendor.*^****  Nor  is  the  vendor  absolutely  excluded 
from  the  service  of  the  vendee.  The  vendor's  contin- 
ued connection  with  the  business  must  always  be  a 
suspicious  circumstance.  But  if  the  vendee  takes  pos- 
session as  the  owner,  and,  by  his  acts,  clearly  shows  to 
the  world  that  he  has  become  the  proprietor,  his  en- 
gaging the  vendor  in  the  capacity  of  a  clerk  or  as  an 
employe  does  mot  render  the  sale  per  se  fraudulent. 
The  relation  which  the  vendor  and  vendee  in  such 
cases  assume  tO'ward  the  business  must  be  such  as  to 
clearly  indicate  to  observers  of  ordinai*y  sagacity  that 
the  former  is  there  as  the  servant,  and  the  latter  as  the 
master.**^    "What,  JKen,  constitutes  such  a  change  of 

802  Comly  V.  Fisher,  Taney.  121. 

863  Ford  V.  Chalmers.  28  Cal.  13;  Parker  v.  Kendrick,  29  Vt.  301; 
Hall  V.  Parsons,  15  Vt.  358. 

864  Godchaux  v.  Mulford,  26  Cal.  317,  85  Am.  Dec.  ITS;  Warner  v. 
Carlton,  22  111.  415;  Dunlap  v.  Bournonville,  26  Pa.  St.  72;  Roth- 
gerber  v.  Goujrh,  52  111.  436;  Ilnsus  v.  Robinson.  24  Pa.  St.  0;  Beers 
V.  Lyon,  21  Conn.  604;  Billinsslpy  v.  White,  59  Pa.  St.  464;  State 
V.  Schnlein,  45  Mo.  521;  McKlbbln  v.  Martin.  64  Pa.  St.  352,  3  Am. 
Rep.  588;  Wilson  v.  Lott,  5  Fla.  305:  Taloott  v.  Wilcox.  9  Conn. 
134;  Ware  v.  Hirsch,  19  111.  App.  274;  O'Gara  v.  Lowry,  5  Mont. 
427;  Ziesrler  v.  Handrick,  106  Pa.  St.  87;  Gould  v.  Huntley.  73  Cal. 
.399;  Etchepare  v.  Afjuirre,  91  Cal.  288.  25  Am.  St.  Rep.  180;  Levy 
V.  Scott.  115  Cal.  39;  Adams  v.  Weaver.  117  Cal.  42;  Clinton  N.  B. 
V.  Studemann.  74  Iowa.  104:  White  v.  Woodruff,  25  Neb.  797;  Flan- 
nery  v.  Van  Tassel,  131  N.  Y.  639. 


§  155       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  752 

possession  as  the  law  requires,  in  order  to  prevent  the 
sale  being  declared  fraudulent?  Undoubtedly,  the  ven- 
dor must  deliver  to  the  vendee  the  possession  of  the 
]>roperty  in  order  to  consummate  the  sale,  and  render 
it  valid  as  against  creditors.  The  delivery  must  be 
actual,  and  such  as  the  nature  of  the  property  or  thing 
sold,  and  the  circumstances  of  the  sale,  will  reasonably 
admit,  and  such  as  the  vendor  is  capable  of  makings 
A  mere  symbolical  or  constructive  deliver^',  where  an 
actual  or  real  one  is  reasonably  practicable,  is  of  no 
avail.  There  must  be  an  actual  separation  of  the  prop- 
erty from  the  possession  of  the  vendor  at  the  time  of 
the  sale,  or  within  a  reasonable  time  afterward,  ac- 
cording to  the  nature  of  the  property.  But  is  it  essen- 
tial to  such  separation  that  the  property  shall  be  re- 
moved from  the  vendor,  or  the  vendor  from  the  prop- 
erty, so  that  there  shall  be  an  actual  and  visible  sepa- 
ration between  them,  measurable  by  space  or  distance? 
Must  the  vendor  absolutely  cease  to  have  any  connec- 
tion or  contact  with  the  property  after  its  delivery,  not 
as  owner,  but  as  the  agent  or  servant  of  the  vendee,  on 
pain  of  having  the  sale  declared  fraudulent?  To  hold 
this  would  be  going  beyond  the  established  doctrine  of 
our  own  decisions,  and  the  reason  and  requirements  of 
the  law.  Separation  of  the  property  from  the  posses- 
sion of  the  vendor  implies  nothing  more  than  a  change 
of  the  vendor's  relation  to  it  as  owner,  and  consists  in 
the  surrender  and  transfer  of  his  power  and  control 
over  it  to  the  vendee.  But  in  order  to  prevent  fraud, 
the  law  requires  that  this  shall  be  done  by  such  appro- 
priate and  significant  acts  as — if  done  in  good  faith — - 
shall  clearly  show  the  vendor's  intention  to  part  with 
the  possession  of  the  property  and  transfer  it  to  the 
vendee.     And  these  acts  must  be  so  open  and  manifest 


753  PERSONAL  rROPEllTY  SUBJECT  TO  EXECUTION.        §  156 

as  to  make  (lie  change  of  possession  ai/iiarcnt  and  visi- 
ble. If  there  are  sncli  i>al[)able  tokens  and  i)roofs  of 
the  vendor's  surrender  of  his  dominion  over  the  prop- 
erty as  owner,  and  of  the  transfer  of  his  possession  to 
the  vendee,  the  sale  will  not  be  declared  fraudulent  in 
law,  although  the  vendor  may  act  as  the  agent  or  ser- 
vant of  the  vendee  in  the  management  and  disposal  of 
the  property,  provided  that  his  acts  are  professedly 
and  apparently  done,  not  as  owner,  but  as  the  agent  or 
servant  of  the  vendee,  and  are  so  understood  by  those 
with  whom  he  deals.  If  the  change  of  possession  is 
otherwise  sufficiently  shown,  the  mere  fact  of  such 
agency  is  not,  and  never  has  been  held  to  be,  such  a 
badge  of  fraud,  or  evidence  of  retained  possession,  as 
to  render  the  sale  invalid."  *^^ 

Separating  a  lot  of  sacks  of  grain  from  a  larger  quan- 
tity in  the  vendor's  corral  or  barnyard,  and  marking 
them  with  the  initial  letter  of  the  vendee's  name,  and 
piling  them  up  in  another  part  of  the  same  corral,  is 
n-ot  a  sufficient  delivery,  where  the  vendor  continues  to 
have  possession  of  the  corral.*^  Where  a  team  has 
been  for  some  time  driven  by  the  same  person,  it  is  not 
a  sufficient  change  of  possession  to  make  a  formal  de- 
livery, discharge  and  re-employ  the  driver,  and  then 
keep  the  team  in  the  same  place  and  about  the  same 
work  as  before.*^"'^ 

?  156.  How  Long  the  Change  of  Possession  must  Con- 
tinue.— A  Pennsylvania  court  once  said:  "It  is  not  the 

885  Billingsley  v.  White,  59  Pa.  St.  4G7. 

866  Vance  v.  Boynton,  8  Cal.  554. 

867  Hurlburd  v.  Bocardns,  10  Cal.  518;  Gray  v.  Corey,  if^  Cal. 
208.  See  Doak  v.  Brubaker.  1  Ner.  218:  Sharon  v.  Shavr.  2  Nev. 
200.  00  Am.  Dec.  ."40;  Mead  v.  Noyes,  44  Coun.  487;  Murch  v.  Swen- 
son,  40  Minn.  421. 

Vol.  I  —48 


?  15G       TEUSOXAL  niOPERTY  SUBJECT  TO  EXECUTION.  754 

law  that  if  a  man  bona  fide  sells  cattle  which  are  re- 
moved, and  afterward  thej  find  their  way  back  to  his 
possession,  the  sale  is  per  se  fraudulent."  ®^**  This  is 
certainly  a  very  clear  misstatement  of  the  law.  It  is 
perfectly  well  settled  that  the  possession  which  must 
accompany  a  sale  must  be  substantial — not  taken  to  be 
surrendered;  and  must  continue  for  a  i^eriod  sufficient 
to  give  a  notoriety  to  the  sale,  among  those  who  are 
familiar  with  the  property.  If  the  possession  be  not 
retained  by  the  vendee  till  it  accomplishes  this  pur- 
pose, the  sale  is  treated  as  though  no  change  of  pos- 
session had  ever  been  made.^^^  Thus,  where  S.  sold 
his  stock  of  goods  to  W.,  who  took  possession,  and  re- 
moved the  property  to  his  own  store,  but  within  less 
than  two  weeks  allowed  S.  to  resume  possession,  pro- 
fessedly as  an  employ^,  and  to  commence  retailing 
the  goods,  the  sale  was  declared  fraudulent.®''**  It 
makes  no  difference  that  the  proi>erty  was  delivered 
back  to  the  vendor  for  purposes  of  manufacture,*'^  nor 
that  it  might  pay  for  its  keeping,*''^  nor  that  an  agent 
of  the  vendee  allowed  it  to  return  without  asking  his 
consent,*'^^  nor  that  after  one  week  it  was  hired  on  an 
unexpected  urgency  in  business,*''*  nor  that,  after  four- 
teen days'  possession,  it  was  sold  at  auction,  and  then 
suffered  to  return    to  its    former   owner.*''^     On    the 

SRS  .Jordan  v.  Bi-cackenridge,  3  Pa.  St.  442. 

8G9  Whitney  v.  Stark,  8  Cal.  514,  G8  Am.  Dec.  3G0;  McBride  v.  Mc- 
Clelland, 6  Watts  &  S.  94;  Young  v.  McClure,  2  Watts  &  S.  147; 
Strceper  v.  Eckart,  2  Whart.  302,  30  Am.  Dec.  258;  Van  Pelt  v.  Lit- 
tler, 10  Cal.  394;  Goldsbury  v.  May,  1  Litt.  25G;  Breckenridge  v.  An- 
derson, 3  J.  J.  Marsh.  710;  Norton  v.  Doolittle,  32  Conn.  405. 

870  Weil  V.   Paul,  22  Cal.  492. 

871  Carter  v.  Watkins,  14  Conn.  240. 

872  Osborne  v.  Tuller,  14  Conn.  529. 

873  Morris  v.  Hyde,  8  Vt.  352,  30  Am.  Dec.  475. 

874  Webster  v.  Peck.  31  Conn.  495. 

875  Rogers  V.  Vail,  16  Vt.  327. 


755  rEIl.SONAL  PROPERTY  SUBJJX'T  'JO  EXKCUTION.        §  156 

other  hand,  it  is  equally  certain  that  the  vendee's  pos- 
session need  not  be  j^erpetual.*^''"  The  buyer  may  em- 
ploy the  former  owner  to  take  charge  of  the  goods,  and 
to  care  for  and  sell  them  for  him.  If  he  does  this  in 
good  faith,  and,  after  taking  such  possession,  and  ex- 
ercising such  control  and  dominion  over  the  property, 
as  to  show  the  public  and  those  dealing  with  the  ven- 
dor that  there  has  been  a  real  change  in  the  ownership, 
he  will  not  be  subjected  to  the  penalty  of  a  forfeiture 
of  his  property  because  he  has  seen  fit,  or  has  been 
compelled,  to  leave  the  goods  in  charge  of  the  former 
owner.'*"  The  time  during  which  the  vendee  must 
keep  the  property  from  the  possession  of  his  vendor 
must  necessarily  differ  in  different  circumstances.  If 
the  vendee's  use  of  the  property  was  very  frequent 
open,  and  public,  the  change  of  possession  would  ac- 
quire sufficient  notoriety  in  a  short  time;  while  if, 
though  under  his  control,  it  was  rarely  seen  by  the 
public,  a  much  longer  time  would  be  necessary.  A 
mortgagee  who,  after  default,  takes  possession  and 
forecloses  his  mortgage,  may  afterward  loan  the  prop- 
erty to  the  mortgagor.**'^^  After  seven  months'  posses- 
sion by  the  vendee,  during  which  the  vendor  occasion- 
aUj  used  the  property,  it  may  safely  be  permitted  to 
return  to  the  custody  of  the  vendor.**'^  A  son,  in  Feb- 
ruary, sold  a  piano  to  his  mother,  with  whom  he  was 
residing.  He  then  left  the  county,  expecting  to  remain 
away  permanently.     In  July  he   returned    and    lived 

878  White  V.  O'Brien,  Gl  Conn.  34. 

8TT  Stevens  v.  Irwin,  15  Cal.  503,  70  Am.  Dec.  500;  Clark  v.  Morse. 
10  N.  H.  236;  Powell  v.  Stickney,  88  Ind.  310;  Ewiug  v.  Merkley, 
3  Utah.  406. 

s-8  Funk  V.  Staats,  24  111.  632. 

''■o  Farusworth  v.  Shephard,  6  Vt.  521;  Dewey  v.  Thrall,  13  Vt. 
281. 


§  157       PERSONAL  FROPERTY  SUBJECT  TO  EXECUTION.  75G 

TV'itli  the  mother  as  before.  The  piano  was  seized  by 
his  creditors;  but  the  court  declared  the  change  of  pos- 
session sufficient. '"^**'^  A  possession  for  two  months,^^^ 
for  five  weeks,^*^  from  the  "fore  part  of  January"  to  the 
12th  of  February,****^  have  each  been  declared  sufiicient 
to  free  the  sale  from  the  character  of  fraudulent  per  se. 

§  157.  Property  Sold,  but  Never  Delivered. — Let  it  be 
borne  in  mind  that  we  have  heretofore  been  treating 
of  the  retention  of  possession  by  the  vendor,  with  refer- 
ence to  its  effect  as  evidence  of  fraud.  The  delivery  of 
possession,  actual  or  constructive,  is,  however,  in  some 
of  the  states,  even  where  its  absence  is  not  regarded 
as  fraudulent  per  se,  necessary  to  complete  the  sale, 
so  that  the  property  cannot  be  levied  upon  by  the  credi- 
tors of  the  vendor.  In  other  words,  while  a  sale  as  be- 
tween vendor  and  vendee  may  be  complete  without  de- 
livery, it  is  not  so  as  between  the  vendee  and  a  credi- 
tor of  or  a  purchaser  from  the  vendor.  In  such  a  case, 
the  property  may  be  awarded  to  the  creditor  of  the 
vendor,  or  to  a  subsequent  purchaser  from  him,  not  be- 
cause the  sale  was  fraudulent  per  se,  but  because,  as 
against  such  creditor  or  purchaser,  it  had  not  yet  been 
consummated.  The  law  upon  this  subject  is  well 
stated  in  the  following  opinion  of  the  supreme  court  of 
Maine,  given  in  a  case  wherein  a  wife  claimed  certain 
cattle  as  the  vendee  of  her  husband:  "The  rule  of  law 

880  Graham  v.  McCreary,  40  Pa.  St.  515,  80  Am.  Dec.  591. 

881  French  v.  Hall,  9  N.  H.  137,  32  Am.  Dec.  341. 

882  Brady  v.  Haines,  18  Pa.  St.  113. 

883  Sutton  V.  Shearer,  1  Grant  Cas.  207.  For  different  cases  de- 
termininj?  the  time  after  which  a  return  of  i)ossession  was  or  was 
not  held  fraudulent,  see  Cunniuf,'ham  v.  Hamilton,  25  111.  228; 
Wright  V.  Grover,  27  111.  42G;  Mills  v.  Wnrner,  19  Vt.  609,  47  Am. 
Dec.  711;  Miller  v.  Garman,  28  Leg.  Int.  405;  Look  v.  Comstock,  15 
Wend.  244. 


757  TEllSONAL  rilOPEUTY  SUBJECT  TO  EXECUTION.        §  1^7 

is  well  estiiblislied,  that  in  older  to  pass  the  title  to 
personal  property  by  a  sale,  as  against  subsequently 
attaehing  creditors  of  the  vendor  without  notice,  there 
must  be  a  delivery,  actual,  ((instructive,  or  symbolical. 
(Cobb  V.  Haskell,  14  Me.  303,  31  Am.  Dec.  5(5.) 

"What  aniiounts  to  proof  of  delivery  has  been  much 
discussed  by  courts  and  jurists,  and  where  so  much 
dei)ends  upon  the  subject-matter  of  the  sale,  its  situa- 
tion and  condition,  the  usual  course  of  trade,  and  all 
other  attendant  circumstances,  together  with  the  sub- 
sequent acts  of  the  parties,  as  showing  their  intention 
at  the  time  of  the  sale,  it  will  be  found  exceedingly 
difficult,  if  not  absolutely  impracticable,  to  lay  down  a 
general  rule  applicable  to  all  cases. 

''Though  this  is  undoubtedly  true,  yet  it  is  proper  to 
observe,  in  general  terms,  that,  to  constitute  proof  of 
a  delivery,  there  must  be  such  evidence  arising  from 
the  conduct  of  the  parties  as  shows  a  relinquishment 
of  ownership  and  possession  of  the  property  by  the  ven- 
dor, and  an  assumption  of  these  by  the  vendee.  This 
is  the  case: 

"1.  Actually,  when  there  has  been  a  formal  tradi- 
tion of  the  property  to  the  vendee;  or, 

"2.  Constructively,  when  the  property,  not  being 
present  or  accessible,  as  a  ship  at  sea,  tlie  vendor  gives 
the  vendee  a  grand  bill  of  sale,  under  which  he  takes 
possession  upon  her  arrival  in  port;  or,  if  the  property 
is  difficult  of  access,  as  logs  in  a  stream,  or  incapable  of 
manual  tradition,  as  blocks  of  stone,  when  the  vendor 
approaches  in  view  of  it  with  the  vendee,  and  proclaims 
a  delivery  to  him ;  or  when  a  part  of  the  goods  are  de- 
livered for  the  whole;  or  if  the  goods  are  in  the  custody 
of  a  third  party,  where  the  parties  to  the  sale  give  such 
party  notice  of  the  transfer;  or. 


§  157       TERiSONAL  rROPERlY  SUBJECT  TO  EXECUTION.  758 

"3.  Symbolically,  when  the  vendor  gives  the  vendee 
the  key  to  the  warehouse  in  which  the  goods  are  stored, 
or  an  order  on  the  wharfinger  or  warehouse-keeper  who 
has  them  in  charge,  or  a  bill  of  landing  duly  indorsed. 

"Though  the  assignment  and  delivery  to  the  vendee, 
by  the  vendor,  of  a  bill  of  lading,  invoice,  or  other 
documentary  evidence  of  his  title  to  the  goods,  has  been 
held  good  as  a  symbolical  delivery,  the  delivery  of  a 
bill  of  parcels  or  bill  of  sale  by  the  vendor  to  the  ven- 
dee has  been  held  insufficient,  as  these  depend  solely 
upon  the  vendor  for  their  authenticity,  and  may  be 
multiplied  indefinitely;  such  memoranda  are  not,  tech- 
nically considered,  documentary  evidence  of  the  ven- 
dor's title. 

"Thus,  in  Lanfear  v.  Sumner,  17  Mass.  117,  9  Am. 
Dec.  119,  a  merchant  in  Philadelphia  made  out  and  re- 
ceipted a  bill  of  sale  of  a  number  of  chests  of  tea,  sup- 
posed to  be  on  their  passage  from  China  to  Boston, 
though  they  were  then  in  the  custom-house  in  Boston, 
and  before  the  agent  of  the  vendee  demanded  posses- 
sion of  them  they  were  attached  by  the  creditor  of  the 
vendor.  The  court  sustained  the  action,  on  the  ground 
that,  the  goods  not  being  at  sea,  there  was  no  delivery, 
actual  or  symbolical,  before  the  attachment. 

"So  in  Carter  v.  Willard,  19  Pick.  9,  the  only  evidence 
of  delivery  was  the  giving  of  a  bill  of  sale  of  the  goods 
by  the  vendor  to  the  vendee,  and  the  court  held  that 
that  was  not  sufficient.  So,  also,  in  Burge  v.  Cone,  G 
Allen,  413,  the  same  question  arose,  with  the  same  re- 
sult. The  doctrine  of  delivery  rests  upon  the  ground 
that  the  vendee  should  have  the  entire  control  of  the 
property,  and  that  there  should  be  some  notoriety  at- 
tending the  act  of  sale;  and  hence,  proof  of  delivery 
will  not  be  dispensed  with  on  account  of  the  peculiar 


75'J  PERSONAL  riiUl'EllTY  SUBJECT  TO  EXECUTION.        §  157 

situation  or  relation  of  the  parties  with  respect  to   the 
property  at  the  time  of  the  sak',  nor  will  these  consti 
tute  snllicient  evidence  of  delivery. 

"Accordingly-,  it  lias  been  hehl  to  be  no  proof  of  de- 
livery that  the  vendor  and  vendee  reside  in  the  same 
house  (Trovers  v.  Ivamsy,  3  Crancli,  C.  C.  354;  not  even 
if  they  are  brothers  (Uolfncr  v.  Clark,  5  Whart.  545);  or 
son-in-law  and  father-in-law  (Steelwagon  v.  Jeffries,  44 
Pa.  St.  407);  nor  if  the  vendor  resides  with  the  vendee 
(Waller  v.  Cralle,  8  B.  Mon.  11);  nor  w'hen  the  vendor's 
agent  remains  in  possession  with  the  vendor  (Medell 
V.  Smith,  8  Cowp.  333);  nor  though  the  parties  are  part- 
ners with  respect  to  the  property  sold  (Shurtliff  v.  Wil- 
lard,  19  Pick.  202). 

"It  is  clear  from  these  cases  that  there  is  the  same 
necessity  for  a  delivery  when  the  parties  to  the  sale  are 
husband  and  wife  that  there  is  in  other  cases.  For 
this  purpose,  the  wife  sustains  the  same  relation  to  the 
husband  as  any  other  person;  and  though,  in  respect 
to  personal  property  owned  by  the  wife  in  her  own 
right,  she  stands  upon  the  same  footing  that  the  hus- 
band does  to  his,  we  are  not  aware  that  the  authorities 
have  gone  so  far  as  to  dispense  with  the  necessary  for- 
malities to  be  observed  in  acquiring  property  in  her 
favor. 

"In  this  case  there  w^as  no  actual  delivery.  John 
McKee,  the  vendor,  and  husband  of  the  plaintiff,  held 
the  same  possession  after  as  before  the  sale  of  the  cat- 
tle. There  was  no  change  of  possession  by  the  act  of 
sale.  Tlie  plaintiff  had  no  possession,  either  of  the  cat- 
tle or  the  farm  on  which  they  were  kept.  She  resided 
on  the  farm  simply  because  her  husband  did.  Nor  w^as 
there  any  constructive  or  symbolical  delivery,  unless 
the  delivery  of  the  bill  of   sale  constituted  one;    and 


§  157        TEUSONAL  PROPERTY  SUBJECT  TO  EXECUTION".  760 

that,  as  we  have  seen,  is  not  sufficient,  there  being 
nothing  tq  prevent  an  actual  delivery  by  a  transfer  of 
the  manual  possession  of  the  property  to  the  ven- 
dee." "'^^ 

It  would  seem  from  the  foregoing  case,  and  from 
others  in  which  similar  language  is  employed,  that 
while  proceeding  upon  different  grounds,  they  reach 
the  same  practical  result  as  those  cases  which  declare 
the  want  of  delivery  and  continued  change  of  posses- 
sion to  render  the  sale  per  se  fraudulent.  That  the 
cases  are  not  designed  to  have  a  practical  identity  of 
result  is  obvious,  from  the  fact  that  the  courts  which 
have  been  the  foremost  to  maintain  that  the  retention 
of  possession  by  the  vendor  does  not  avoid  the  sale,  as 
fraudulent  per  se,  have  also  been  the  foremost  to  de- 
clare that,  as  against  creditors  of  the  vendor,  the  title 
to  personal  property  does  not  pass  without  delivery. 
It  is  difacult,  and,  perhaps,  impossible,  to  state  the  ex- 
act difference  between  the  two  classes  of  cases,  the  first 
of  which  is  represented  by  Hamilton  v.  Russell,  cited 
in  section  149,  and  the  second  by  jMcKee  v.  Garcelon, 
from  which  we  have  just  quoted.  The  difference  is,, 
nevertheless,  material.  That  it  cannot  be  satisfac- 
torily stated  is  not  owing  to  its  want  of  magnitude  and 
importance,  but  rather  to  the  fact  that  the  cases  of  the 

884  McKee  v.  Garcelon,  GO  Me.  165,  11  Am.  Rep.  200.  See,  also, 
Ober  V.  Matthews,  24  La.  Ann.  90;  Burge  v.  Cone.  6  Allen.  412; 
Carter  v.  Willard,  19  Tick.  1;  Packard  v.  Wood.  4  Gray,  .307;  Hoof- 
smith  V.  Cope.  C  Whart.  53;  Lansfear  v.  Sumner,  17  Mass.  112.  9 
Am.  Dec.  119;  Mount  Hope  Iron  Co.  v.  Buffington,  103  Mass.  02; 
Morgan  v.  Taylor,  32  Tex.  3G3;  Fairfield  Bridge  Co.  v.  Nye.  00  Me. 
374:  note  d  to  sec.  675  of  Benjamin  on  Sales,  Am.  ed.;  Rieker  v. 
Cross,  5  N.  H.  572,  22  Am.  Dec.  480;  Hilliard  on  Sales,  c.  S,  sec.  23; 
Slmmway  v.  Rutter,  7  Pick.  55;  1  Parsons  on  Contracts,  4th  ed., 
442.  But  from  the  doctrine  of  these  cases,  a  vigorous  and  well- 
considered  dissent  was  expressed  in  Meade  v.  Smith,  IG  Conn.  347. 


7G1  PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION'.        §  157 

second  class,  wLilo  not  diametrically  ojjposcd  to  one 
another,  cannot  all  be  brought  to  the  same  line;  and 
hence,  as  a  class,  we  cannot  say  how  near  I  hey  ap- 
proach the  line  of  decisions  following  the  lead  of  ITani- 
ilton  V,  liussell.  So  far  as  we  understand  and  can 
state  it,  the  distinction  is  this:  the  cases  of  the  first 
class  demand  that  an  absolute  sale  shall  be  accompa- 
nied and  followed  by  an  open,  visible  change  of  posses- 
sion, such  as  will  notify  persons  seeing  or  dealing  with 
the  property  of  its  change  of  ownership.  This  visible 
change  of  i)Ossession  will  ordinarily'  be  dispensed  with 
only  upon  grounds  of  necessity;  and,  having  once 
taken  place,  it  must  continue  until,  by  its  continuance, 
the  sale  acquires  such  notoriety  and  such  appearance 
of  good  faith  as  induces  a  conviction  of  its  reality  and 
fairness,  and  warns  the  community  that  the  property 
can  no  longer  be  treated  as  that  of  the  vendor.  Want- 
ing this  visible  and  continuous  change  of  possession, 
the  sale  is  declared  to  be  fraudulent  and  of  no  effect 
as  against  creditors  of  the  vendor.  The  cases  of  the 
second  class  demand  that  there  shall  be  a  delivery  ac- 
companying or  following  the  sale.  But  the  delivery 
which  they  exact  seems  in  most  cases  to  be  nothing 
more  than  some  formal  act,  indicating  that  the  vendor 
relinquishes  and  the  vendee  assumes  possession.  The 
delivery  may,  therefore,  be  without  that  notoriety 
which  gives  notice  to  the  world  of  the  transmission  of 
the  title; '^^^^  and,  having  once  been  perfected,  the 
property  may  be  returned  to  the  control  of  the  vendor 

8S5  insalls  V.  Herrick.  108  Mass.  351.  11  Am.  Rep.  oOt);  Sbumway 
T.  Rutter,  8  Pick.  443.  10  Am.  Dec.  340:  Less  v.  Willard.  17  Pick. 
140.  28  Am.  Dec.  2S2:  Hardy  v.  Potter.  10  Gray.  SO:  Phelps  v.  Cut- 
ler. 4  Gray,  137;  Tuxwortli  v.  Moore.  9  Pick.  :U7:  Bullard  v.  Wait, 
16  Gray.  55;  Ropes  v.  Lane.  9  Allen.  502;  Drake  on  Attachments, 
sec.  245  a;  Hatch  v.  Bayley,  12  Gush.  27. 


§  15S       PERSONAL  PROPERTY  SUBJECT  TO  EXECUTION.  762 

witliout  affecting  the  sale,  except  bv  inducing  a  pre- 
sumption against  its  fairness.  But  when  wanting  in  a 
delivery,  "actual,  constructive,  or  symbolical,"  the  sale 
is  declared  as  against  creditors  not  to  have  taken  place, 
and  they  may  seize  the  property  and  apply  it  to  the  sat- 
isfaction of  their  claims  against  the  vendor. 

§  158.  When  Property  is  Purchased  Fraudulently  and 
by  misrepresentation,  without  paying  the  purchase 
price,  the  vendor  is  entitled  to  rescind  the  sale  and  re- 
claim possession  of  the  goods.  As  against  the  claims 
•of  the  vendor,  the  vendee  has  no  interest  subject  to 
execution.  The  property,  if  levied  upon  under  a  writ 
against  the  fraudulent  vendee,  remains  subject  to  the 
rights  of  the  vendor,  who  may  recover  it  from  the  offi- 
cer by  any  appropriate  action.^^" 

8se  Van  Cleef  v.  Fleet,  15  Johns.  147;  Covoll  v.  Hitchcock.  23- 
Wend.  611;  Durell  v.  Haley.  1  Paijie.  492;  Gary  v.  Hotailing:,  1  Hill,. 
311.  37  Am.  Dee.  323;  Lupin  v.  Marie.  2  Paiffe,  1G9;  Ash  v.  Putnam, 
1  Hill.  302;  Acker  v.  Campbell,  23  Wend.  372;  Hitchcock  v.  Covill, 
20  Wend.  167;  Farley  v.  Lincoln,  .CT  N.  H.  577,  12  Am.  Rep.  182; 
Load  V.  Green,  15  Mees.  &  W.  216;  Bristol  v.  Wilsmore,  1  Barn,  &. 
C.  514. 


763       i-EKSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  15^ 


CHAPTER  XI. 

PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT. 

§  159.     Proporty   subject   to   garuislmu'iit   other    thau    choses    lu 

action. 
§  150a.  Garuishuieut  of  property  uot  subject  to  execution. 
§  159b.  Garnishment  of  property  fraudulently  transferred. 
§  160.     Possession  necessary  to  render  garnishee  liable. 
§  IGOa.  Garnishment  of  property  in  possession  of  servant  or  agent. 
§  IGl.     Bailee  of  choses  in  action. 
§  ICla.  Situs  of  choses  in  action  for  the  purpose  of. 

OF  THE  DEBTS  SUBJECT  TO  GARNISHMENT. 

§  162.     General  character  of  debts  subject  to. 

§  lG2a.  Garnishment  of  rights  which  defendant  has  option  of 
enforcing. 

§  1G3.     Debt,  Avhether  must  be  payai)le  in  coin. 

§  IGoa.  Common  carriers,  property  in  the  custody  of. 

§  1G4.     Debt  must  not  be  contingent. 

§  lG4a.  Garnishment  of  claims  against  insurance  companies. 

§  1G5.     Need'not  be  due. 

§  IGG.     Debts  in  suit  or  in  judgment. 

§  1G7.     Claims  in  tort,  or  for  unliquidated  damages. 

§  1G8.     Debts  due  by  negotiable  note. 

§  1G9.     Debts  due  to  or  from  two  or  more  persons. 

§  lG9a.  Debts  due  to  part  only  of  the  judgment  debtors. 

§  170.    Debts  assigned. 

§  170a.  Garnishee's  duty  to  urge  that  debt  or  property  is  not  sub- 
ject to  garnishment. 

§  171.     Asserting  garnishment  as  a   defense. 

§  159.  Property  Subject  to  Garnishment  otner  than 
Choses  in  Action. — Much  of  llic  property  which  is,  either 
by  the  rules  of  the  comniou  law,  or  by  statutes  enacted 
in  the  several  states,  subject  to  execution  is  of  such  a 
character  that  it  cannot  then  be  taken  into  the  pos- 
session of  the  otlicer  charjied  with  the  service  of  the 
writ,  or,  if  it  be  of  itself  of  sucli  character,  is  subject  to 
obligations  existing  in  favor  of  third  persons  which  the 


^  159     PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.       764 

officer  has  no  right  to  disregard  by  depriving  tliem  of 
the  possession  of  such  property.  Hence,  the  necessity 
of  providing  some  method  of  subjecting  the  interests 
of  the  judgment  debtor  to  execution  without  prejudic- 
ing the  rights  of  otliers.  To  do  this,  it  is  evident  that 
some  act  must  be  authorized  to  be  done  by  the  officer 
having  the  execution  in  his  hands  which  will  bind  the 
property  sought  to  be  reached,  though  possession  of  it 
is  not  taken,  and  perhaps  cannot  be  taken  by  the  offi- 
cer, and  which  will  impose  on  the  person  in  whose  pos- 
session it  is  the  duty  of  holding  it  subject  to  the  rights 
of  the  execution  creditor,  or  of  paying  it  over  to  him, 
in  case  it  consists  of  a  debt  or  chose  in  action,  and  of 
permitting  the  debtor's  interest  in  it  to  be  sold  or  ap- 
plied to  the  satisfaction  of  the  writ,  if  the  property  is 
of  a  tangible  character.  "Garnishment  is  attachment 
by  means  of  which  money  or  property  of  the  debtor  in 
the  hands  of  third  parties,  which  cannot  be  levied  upon, 
may  be  subjected  to  the  payment  of  the  creditor's 
claims."  ^  "Garnishment  is  the  legal  proceeding,  as- 
similated to  an  attachment,  intended  to  reach  debts  or 
choses  in  action,  the  property  of  the  debtor,  not  capa- 
ble of  seizure  by  execution  or  attachment,  or  to  compel 
the  discovery  of  effects  capable  of  seizure,  in  the  pos- 
session of  third  persons."  ^  The  result  of  garnishment 
is  that  a  person  not  a  party  to  the  writ  or  action  in 
which  it  was  issued  may  become  liable  to  pay,  in  satis- 
faction of  an  execution,  some  debt  found  to  be  due 
from  him  to  the  judgment  debtor,  or  may  be  required 
to  permit  property  in  his  possession,  in  Avhich  the 
debtor  has  an  interest,  to  be  subjected  to  such  writ. 

1  American  C.  I.  Co.  v.  Hettler,  37  Neb.  849,  40  Am.  St.  Rep.  522. 

2  Heury  v.  Murphy,  54  Ala.  24G. 


765       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  159 

Willi  respect  to  property  which  may  be  subjected  to 
execution  by  garnishmc^nt  we  cannot  liere  obviously  en- 
ter into  ch^tails,  because  it  must  be  considered  in  con- 
nection with  the  statutes  of  the  several  states,  for  it 
is  admitted  that,  by  these  statutes,  the  authority  to 
garnish  is  conferred,  and,  except  to  the  extent  ex- 
pressly authorized  by  them,  it  does  not  exist.^  There- 
fore, whoever  claims  any  right  by  virtue  of  a  garnish- 
ment must  show  that  the  property  against  which  he 
seeks  to  assert  it  has  been  made  liable  to  garnishment 
by  the  statutes  of  the  state,  and,  if  its  liability  is  de- 
pendent upon  any  condition,  that  such  condition  ex- 
isted when  the  writ  was  served.  Thus,  if  property  is 
of  a  character  which  the  officer  is  authorized  to  take 
possession  of,  and  no  circumstances  exist  taking  it  out 
of  the  general  rule,  he  cannot  proceed  by  garnishment. 
Generally,  if  the  property  is  capable  of  manual  deliv- 
ery, it  must  be  seized  by  the  attaching  officer,  though 
found  in  the  possession  of  a  stranger  to  the  writ,  if 
such  possession  can  be  taken  from  him  without  any  in- 
vasion of  his  rights  *  A  levy  upon  chattels  capable  of 
manual  delivery,  by  garnishment  of  the  person  in 
whose  possession  they  are,  is  ineffective.^  A  dwelling- 
house  belonging  to  a  tenant  of  the  land  upon  which  it 
is  standing  has  been  held  to  be  capable  of  manual  de- 
livery, and  therefore  not  attachable,  except  by  taking 
it  into  the  possession  of  the  officer.^ 

8  SicKfl  V.  Schueck,  1G7  111.  522,  59  Am.  St.  Rep.  ^OO:  Folkerts  v. 
Standish.  55  Midi.  403;  Ki^nnerly  v.  McEellau.  Tt!  Mich.  598. 

4  Civ.  Code  Ala.,  ed.  ISSfi,  sec.  2945;  Rev.  Stats.  Ariz.,  ed.  1887, 
sec.  54;  Samlols  &  ITill's  Dijr.  Ark.,  see.  3508;  Code  Civ.  Proc.  Gal., 
sec.  542;  Code  Civ.  Proc.  Col.,  sec.  98;  Code  Civ.  Proc.  Dak.,  sees.  201, 
208;  Rev.  Code  Del.,  c.  104.  sec.  2. 

R.Tohnson  v.  Gorham.  r>  Cal.  195.  CTt  .\in.  Dec.  501. 

6  Coleman  v.  Collier,.  11  Pac.  C.  L.  J.  5ti7. 


3  159    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.       76G 

When  property  soiiglit  to  be  garuislied  is  tangible 
and  capable  of  manual  possession,  there  can  be  no 
doubt  that  it  must  be  within  the  state  from  whose 
court  the  writ  issued.  Though  the  person  garnished  is 
within  the  state,  and  has  property  of  the  defendant  in 
his  possession  in  another  state,  the  service  of  the  writ 
upon  him  cannot  impose  upon  him  the  duty  of  bringing 
the  property  from  the  state  wherein  it  is  for  the  pur- 
pose of  subjecting  it  to  execution.  Perhaps,  if  the 
garnishee  is  under  a  duty,  as  between  himself  and  the 
defendant  in  execution,  to  bring  the  property  into  the 
state,  the  garnishment  may  give  the  judgment  creditor 
the  right  to  have  this  duty  performed.  In  all  other 
cases  it  is  indisputable  that  the  garnishment  cannot 
reach  property  situate  outside  of  the  state.'' 

Shares  of  stock  held  by  a  judgment  debtor  have,  in 
a  majority  of  the  states,  been  by  statute  made  subject 
to  garnishment.  The  only  question  deserving  special 
consideration  in  connection  with  this  subject  involves 
the  right  to  subject  to  execution  shares  of  stock  in  for- 
eign corporations.  The  interest  of  the  respective  stock- 
holders in  a  corporation  is  usually  evidenced  by  certifi- 
cates of  stock  capable  of  transfer,  and  therefore  sub- 
jects of  sale  out  of,  as  well  as  within,  the  states  in 
which  they  are  issued.  We  have  already  shown  that 
property  is  usually  not  subject  to  garnishment  in  a 
state  other  than  that  in  which  it  is.  Within  the  mean- 
ing of  this  rule,  can  the  stock  of  a  corporation  have  any 
situs  other  than  that  of  the  corporation  itself?     We 

7Bowen  v.  Pope,  125  111.  28,  8  Am.  St.  Rep.  330;  McLean  v. 
Swarts,  69  Minn.  128,  65  Am.  St.  Hop.  5.56;  Sutherland  v.  Second 
N.  B.,  78  Ky.  250;  Plimpton  v.  Bigelow,  93  N.  Y.  592;  Buchanan  v. 
Hunt,  98  N.  Y.  560;  Pennsylvania  R.  R.  Co.  v.  Pennock,  51  Pa.  St. 
244;  Neufeldor  v.  German  A.  I.  Co.,  6  Wash.  336,  36  Am.  St.  Rep. 
166;  see  post,  §159a. 


7U7       PERSONAL  rilOrEllTV  SUBJECT  TO  tlAUNl.sUMENT.     §  151) 

believe  this  question  iiiiist  be  answered  iu  the  nega- 
tive.'* In  some  of  the  states  general  statutes  purport- 
ing to  create  a  right  to  subject  stock  of  corporations  to 
garnishment  have  been  held  applicable  to  foreign  cor- 
porations, and  persons  having  certificates  of  such  stock 
in  their  jxjssession  belonging  to  the  judgment  debtor 
have  been  held  answerable  as  garnishees.®  Probably 
it  is  within  the  jjower  of  a  state,  by  special  statutory 
♦enactments  to  that  effect,  to  authorize  certificates  of 
stock  in  foreign  corporations,  found  within  the  state, 
to  be  taken  under  execution  by  actual  levy  or  by  gar- 
nishment, but  statutory  authority  must  always  be 
found  to  sustain  such  levy  or  garnishment.**  And  the 
intention  of  the  legislature  to  confer  such  authority  is 
not,  in  a  majority  of  the  states,  inferred  from  general 
declarations  to  the  effect  that  all  the  property  of  a 
judgment  debtor  is  subject  to  execution,  or  that  shares 
of  stock  in  any  corporation,  or  any  interest  therein,  are 
so  subject.** 

It  seems  almost  superfluous  to  suggest  that  whether 
property  is  subject  to  garnishment,  it  remains,  notwith- 
standing a  garnishment,  subject  to  all  pre-existing 
liens,  and  except  where  the  defendant  iu  execution  has 
made  it  the  subject  of  a  fraudulent  transfer,  a  judg- 
ment creditor  cannot  by  his  garnishment  acquire  any 
greater  interest  than  the  defendant  in  execution  had  in 
the  property  at  the  service  of  the  writ.*^ 

8  Christmas  v.  Bidille,  13  Pa.  St.  222:  Ireland  v.  Globe  M.  &  R. 
Co.,  19  R.  I.  ISO,  61  Am.  St.  Hep.  TuG;  Young  v.  South  T.  I.  Co.,  85 
'J'enn.  189,  4  Am.  St.  Rep.  752. 

8  Puset  Sound  N.  B.  v.  Mather.  GO  Minn.  .'^62. 

10  Briscoe  v.  Minah  M.  Co.,  82  Fed.  Rep.  952. 

11  Foster  v.  Potter,  37  Mo.  525:  Armour  &  B.  Co.  v.  St.  Loui.s  N.  B., 
113  :Mo.  12,  35  Am.  St.  Rep.  G91:  Plimpton  v.  Bigolow,  93  N.  Y.  592; 
Ireland  v.  Globe  yi.  &  R.  Co..  19  R.  I.  ISO,  Gl  Am.  St.  Rep.  756. 

12  Maicr  v.  Freeman,  112  Cal.  8,  53  Am.  St.  Rep.  151. 


§   159a  PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        7(5* 

§  159  a.    Property  not  Subject  to  Execution,  whether 

Subject  to  Garnishment. — Garnislimeut,  except  where 
its  scope  lias  been  enlarged  by  statute,  is  generally  re- 
garded as  a  proceeding  at  law/'^  and  can  therefore  af- 
fect no  rights  or  interests  not  recognized  at  law.  This 
proceeding  is  designed  mainly  to  reach  the  legal  assets 
of  the  defendant  in  the  hands  of  third  persons,  or  to 
intercept  legal  credits  owing  to  the  defendant,  and 
compel  their  payment  to  the  plaintiif.  Choses  in  ac- 
tion, though  not  subject  to  execution  at  law,  are  proper 
subjects  of  garnishment.  But  property  capable  of  man- 
ual delivery  is  rarely  subject  to  garnishment,  if  for  any 
of  the  causes  detailed  in  the  tw^o  preceding  chapters 
it  is  not  subject  to  execution.  And  wliether  capable  of 
manual  delivery  or  not,  it  may  fall  within  the  class  of 
property  exempt  by  statute  from  attachment  or  execu- 
tion. If  such  is  the  case,  it  is  not  subject  to  garnish- 
ment, for  garnishment  is  merely  a  means  provided  by 
statute  for  reaching  property  which  is  subject  to  exe- 
cution.-''* If  the  debt  sought  to  be  reached  represents 
money  obtained  or  due  to  the  defendnut  as  a  pension, 
the  garnishee  is  not  liable  because  of  the  exemption 
of  such  pension  money  from  execution. ^^  A  like  re- 
sult follows  Avhere  the  debt  consists  of  wages  due  to 
the  defendant  and  exempt  by  statute;  ^^  and  generally, 
it  is  the  duty  of  one  w^ho  is  garnished  for  debts  or  prop- 
erty exempt  from  execution  to  urge  such  exemption, 

13  Thomas  v.  Iloppor,  5  Ala.  442;  Price  v.  Mastorson,  3.")  Ala.  48.3; 
Lackland  v.  Garesche.  m  Mo.  2(i7. 

i4Wylie  V.  Grmidyson,  .'>!  Minn.  300.  .38  Am.  St.  Rop.  .')09:  Craw- 
ford V.  Carroll.  93  Tenn.  001,  42  Am.  St.  Eep.  943;  Below  v.  Robbins, 
70  Wis.  000.  20  Am.  St.  Rep.  89. 

15  Hayward  v.  Clark.  .50  Vt.  012. 

ifi  Bliss  V.  Smith.  78  111.  .3r)9;  Hoffman  v.  Fitzwilliam.  81  Til  .521; 
Chicaso  etc.  R.  R.  Co.  v.  Racrland.  84  Til.  37.":  Welkor  v.  Ilinze.  IS 
111.  App.  32G;  Illinois  C.  E.  Co.  v.  Smith,  70  Mis.s.  344,  35  Am.  St.  Rep. 
65  J. 


769     PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  159a 

or  at  k'ust  to  give  the  defendiiiit  au  opportunity  of  so 
doing.  If,  however,  the  creditor  succeeds  iu  collecting 
bj'  garnishment  wages  of  the  debtor  which  by  law  are 
exeni2>t  from  execution,  the  latter,  unless  he  has 
waived  such  exemption,  may  proceed  against  the 
former  as  a  wrongdoer,  and  recover  the  amount  im- 
properly collected.*' 

Property  situate  beyond  the  territorial  limits  of  a 
state  is  not  subject  to  direct  seizure  by  the  officers  of 
such  state,  because  tlieir  authority,  and  that  of  the 
courts  which  they  rei)resent,  is  confined  within  those 
limits.  This  is  true,  although  such  property  may  be  in 
the  possession  or  control  of  a  person  who  is  within  the 
state.  "Notwithstanding  the  general  language  of  our 
statute  upon  the  subject  of  garnishment,  that  'any 
creditor  shall  be  entitled  to  proceed  by  garnishment  in 
the  circuit  court  of  the  proper  county,  against  any  per- 
son (except  a  municipal  corporation)  who  shall  be  in- 
debted to  or  have  any  property  whatever,  real  or  per- 
sonal, in  his  possession  or  under  his  control  belonging 
to  such  creditor's  debtor,  in  the  cases,  upon  the  con- 
ditions, and  in  the  manner  prescribed  in  this  chapter,* 
we  feel  constrained  to  hold  that  the  personal  property 
or  real  estate  in  his  possession,  or  under  his  control, 
must  be  limited  to  personal  property  or  real  estate 
within  this  state,  and  that,  in  the  absence  of  any  fraud 
or  connivance  on  the  part  of  the  garnishee  to  aid  in 
defrauding  his  creditors,  personal  property  or  real  es- 
tate w^hich  is  lawfully  in  the  possession  or  under  the 
control  of  the  garnishee  outside  of  this  state  is  not  the 
subject  of  garnishment  under  our  statute;  that  per- 
sonal chattels  outside  of  the  state,  which,  if  within  the 
state,  could  be  seized  by  attachment  or  execution,  were 

"  Albreoht  v.  Treitschke,  IT  Neb.  205. 
Vol.  I. -49 


§  l.VJa    TERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     770 

nut  iiiteuded  to  be  covered  by  the  slaliite,  is^  we  tliiuk, 
evident."  ^'^ 

So  property  held  by  any  person  as  the  custodian  of 
the  hiw,  or  as  a  disburser  of  public  moneys,  or  merely 
in  an  official  capacity,  is  no  more  subject  to  garnish- 
ment than  it  is  to  direct  levy  under  executiou.-*^^  We 
have  already  considered  the  question  whether,  and  to 
what  extent,  personal  property  is  subject  to  execution 
when  regarded  as  in  the  custody  of  the  law,  and  shall 
not  here  re-enter  upon  any  detailed  reconsideration  of 
this  subject.  It  is  sufficient  for  our  puri)ose  to  state 
that  the  same  principles,  which  forbid  the  direct  levy 
upon  property  when  in  the  custody  of  the  law,  equally 
forbid  proceedings  to  reach  it  by  the  garnishment  of  its 
legal  custodian  or  otherwise.^**  Hence  property  can- 
not be  subjected  to  garnishment  when  taken  by  an  offi- 
cer from  a  person  by  him  arrested  accused  of  crime,^^ 
nor  can  a  creditor  by  garnishment  reach  moneys  in  the 
hands  of  executors,  and  the  custody  of  which  they  have 
a  right  to  retain,"^  or  moneys  due  from  a  municipal 

18  Bates  V.  C.  M.  &  St.  P.  Ey.,  60  Wis.  296,  50  Am.  Rep.  369;  ante, 
sec.  159. 

19  Bundle  v.  Scbeetz,  2  Miles.  ,330;  Corbyn  v.  Bollniau.  4  W^atts  & 
S.  342;  Bulkley  v.  Eckert,  3  Pa.  St.  368;  Clark  v.  Boggs.  6  Ala.  809, 
41  Am.  Dec.  85;  Spauldiug  v.  Imlay,  1  Root,  551;  Thorn  v.  Wood- 
ruff, 5  Ark.  55;  Fowler  v.  McClelland,  5  Ark.  IBS;  Stillman  v.  Isliaiii. 
11  Conn.  124;  McMeekin  v.  State,  9  Ark.  553:  Wincliell  v.  Allen,  1 
Conn.  385;  Ward  v.  Hartford  Co.,  12  Conn.  404;  Lyons  v.  Houston, 
2  Harr.  (Del.)  349;  Eollo  v.  Andes  Ins.  Co.,  7  Chic.  L.  N.  GS. 

20  Long  V.  Walker,  84  Ala.  72;  Tuck  v.  Manning.  150  Mass.  211; 
State  V.  Netherton,  26  Mo.  App.  414;  jMeyer  v.  Miller.  51  Neb.  620; 
Curtis  V.  Ford.  78  Tex.  262:  Marx  v.  Parker,  9  Wash.  473.  43  Am. 
St.  Hep.  849;  In  re  Greer  (189.5),  2  Ch.  217. 

21  Holker  v.  Hennessey,  141  Mo.  .527,  CA  Am.  St.  Rep.  .524;  Hill  v. 
Hatch,  99  Tenn.  39.  63  Am.  St.  Rep.  822. 

22  Hudson  V.  Wilbur,  114  Mich.  116:  Post  v.  Love.  19  Fla.  634; 
Norton  v.  Clark,  18  Nev.  247:  Harrington  v.  La  Rociiue.  13  Or. 
344;  Conway  v.  Armington.  11  R.  I.  116;  Bickle  v.  Cusman's  Ad.,  26 
Va.  678;  Prout  v.  Gregory,  L.  R.  24  Q.  B.  D.  281. 


771      PERSONx\L  rilOPEUTY  SUBJECT  TO  (J AUNI8HMENT.     §  159a 

oorpoiiilioii  io  its  officers,  employes,  or  other  credit- 
ors,-'' <»!•  fr(»in  a  couiity,^^  or  moneys  in  the  hands  of  a 
hoard  of  education  or  (►ther  olliccrs  of  a  scliool  dis- 
trict,'"' or  in  the  hands  of  county  clerks,^"  or  receiv- 
ers,^' or  of  administrators.-'^  W'licic,  liowevcr,  moneys 
are  in  custody  of  the  haw,  they  may  be  garnished  when 
a  jud<:jn)ent  or  order  has  been  made  for  tlieir  distribu- 
tion, so  that  the  riglit  of  the  person  wliose  interest  is 
garnished  has  become  unquestionable,  and  the  uphold- 
ing of  the  garnishment  cannot  interfere  with  the  juris- 
diction of  the  court  or  im])air  its  authority  to  deal  with 
the  controversy  before  it.-"  If  money  is  due  from  a 
receiver,  it  is  said  that  he  may  be  garnished,  though, 
doubtless,  the  rights  of  the  judgment  creditor  must  be 
enforced  by  some  proceeding  in  the  court  by  which 
the  receiver  was  appointed."'*^ 

So,  w^here  property  capable  of  manual  delivery  can- 
not be  subjected  to  ordinary  levy  and  sale,  because  it 
is  in  the  hands  of  a  person  other  than  its  owner,  and 
such  other  person  is  entitled  to  remain  in  such  posses- 
sion for  some  definite  period,  it  cannot,  unless  made  so 
by  statute,  be  reached  by  garnishment  or  trustee  pro- 
cess.    Hence,  a  pledgee  or  a  mortgagee  in  possession 

23  Porter  etc.  Co.  v.  Perdue,  10.5  Ala.  293,  53  Am.  St.  Rep.  124; 
Leake  v.  Lacey,  95  Ga.  747,  51  Am.  St.  Rep.  112.  ami  note;  Smith 
V.  Woolsey,  22  111.  App.  185;  Ottawa  F.  N.  B.  v.  Ottawa,  43  Kan. 
294;  Bay  City  B.  Co.  v.  McDonnell.  lOOMich.  172;  Baird  v.  Rogers, 
95  Tenu.  492;  Van  Cott  v.  Pratt,  11  Utali,  209;  Central  Banli  v. 
Ellis.  20  Ont.  App.  3(U. 

21  State  V.  Tyler,  14  Wash.  495,  53  Am.  St.  R(>p.  878. 

25  Skelly  V.  Westminster  School  Dist.,  103  Cal.  052;  Chamberlain 
V.  Watters,  10  Utah.  298. 

26  Smith  V.  Finlen,  2S  111.  App.  156;  Curtis  v.  Ford,  78  Tex.  2G2. 

27  Blum  V.  Van  Vechten,  92  Wis.  378. 
2s  Gill  V.  Middleton,  GO  Ark.  213. 

29  Dunsmoor  v.  Furstenfeldt.  88  Cal.  522.  22  Am.  St.  Rop.  331. 
so  Irwin  v.  McKechnie,  58  Miuu.  145.  49  Am.  St.  Rep.  495. 


§  159a     PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     772 

cannot  be  summoned  and  charged  as  the  trustee  of  the 
pledgor  01-  mortgagor.*'^  Tliis  is  the  rule  sustained  by 
a  considerable  majority  of  the  authorities  arising  un- 
der laws  in  which  the  garnishment  of  pledgees  and 
mortgagees  is  not  clearly  authorized  by  some  statutory 
provision.  But  the  propriety  of  subjecting  the  inter- 
ests of  pledgors  and  mortgagors  to  execution  has  been 
very  generally  conceded.  While  the  mortgagee  or 
pledgee  is  in  possession,  and  entitled  to  so  continue,  it 
is  evident  that  no  direct  seizure  can  be  made.  The 
most  convenient  method  of  reaching  the  property  and 
subjecting  it  to  execution  is  by  garnishment.  This 
method  is  now  very  generally  authorized  by  statute  to 
reach  pledged  or  mortgaged  property,  and  is  in  very 
common  use.^^  In  some  of  the  states  it  may  be  shown 
that  the  mortgage  is  fraudulent  as  against  creditors^ 
and  the  mortgagee  compelled  to  account  for  the  full 
value  of  the  property.^^  A  mortgagee  cannot  be  held 
as  the  trustee  or  garnishee,  except  when  he  is  in  the 

31  Drake  on  Attachment,  sees.  538.  540;  Hudson  v.  Hunt.  5  N.  H. 
538;  Patterson  v.  Harland,  12  Ark.  158;  Badlam  v.  Tucker.  1  Pick. 
389,  11  Am.  Dee.  202;  Central  Bank  v.  Prentice.  18  Pick.  396;  Wliit- 
ney  v.  Dean,  5  N.  H.  249;  Howard  v.  Card.  6  Me.  So3;  Caflender 
V.  Furbish,  46  Me.  226;  Kergiu  v.  Dawson,  1  Gilm.  86;  Rhoades  v. 
Megonij^al,  2  Pa.  St.  39. 

32  Aldrich  v.  Woodcock,  10  N.  H.  99;  Boardman  v.  Gushing,  12 
N.  H.  105;  Chapman  v.  Gale.  32  N.  H.  141;  Iluirhes  v.  Cory,  20 
Iowa.  ::99;  Carty  v.  Fenstemaker,  14  Ohio  St.  457;  Blake  v.  Hatch, 
25  Vt.  555;  Treadwell  v.  Davis,  34  Cal.  601.  94  Am.  Dec.  770;  Ed- 
wards V.  Beugnot,  7  Cal.  162;  Becker  v.  Dunham,  27  Minn.  32; 
Burnham  v.  Doolittle.  14  Neb.  214;  Davis  v.  Wilson,  52  Iowa,  187; 
Williams  v.  Gallick,  3  Pac.  Rep.  469;  Myer  v.  Miller,  51  Neb.  620; 
Root  V.  Davis,  51  Ohio  St.  29. 

33  Brainard  v.  Van  Kuran,  22  Iowa,  261.  The  same  rule  was  ap- 
plied to  a  vendee  under  a  fraudulent  sale.  Morris  v.  House,  32 
Tex.  492. 


773     PEllSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  159b 

aoduil  possession  of  the  property. ^'^  The  rights  of  gar- 
uishiiKiit  must  be  exercised  iii  suboi-diiuition  to  the 
rights  of  the  mortgagee  or  pk^dgee.  Generally,  the 
mortgagee  cannot  be  deprived  of  the  possession  with- 
out he  is  first  offered  payment  of  the  mortgage  debt.^' 
In  some  states  pledged  property  may  be  taken  and. 
offered  for  sale  at  public  auction.  If  it  can  be  sold  for 
more  than  the  debt  secured,  the  debt  is  paid,  and  the 
balance  applied  to  the  payment  of  the  judgment.  If, 
however,  no  bid  can  be  obtained  sufficient  to  discharge 
the  claim  of  the  pledgee,  the  property  is  returned  to 
him.='« 

§  159  b.  Garnishment  where  Fraudulent  Transfers 
have  been  Made. — As  has  been  heretofore  shown,  a 
transfer  made  to  defraud  creditors  may  generally  be 
treated  by  them  as  absolutely  void,  and  the  property 
transferred  may  be  levied  upon  and  sold  in  the  same 
manner  and  with  the  same  effect  as  though  such  trans- 
fer had  not  been  attempted.  A  fraudulent  transfer 
is  equally  unavailing  against  a  garnishment.  It  is  or- 
dinarily true  that  garnishment  cannot  be  prosecuted 
with  success  when  the  defendant  in  execution  has  no 
right  which  he  can  assert  against  the  person  garn- 
ished.^" It  is  equally  true  that  when  a  defendant  in 
execution  has  made  a  transfer  of  a  chose  in  action,  or 
other  property,  for  the  purpose  of  hindering,  delaying, 

34  Pierce  v.  Henries,  35  Me.  57;  Central  Bank  v.  Prentice.  IS  Pick. 
396;  Wood  v.  Estes,  35  Me.  145;  Callender  v.  Furbish.  46  Me.  226; 
Fountain  v.  Smitli,  70  la.  2S2;  Spitz  v.  Tripp.  80  ATis.  2.'). 

35  Cotton  V.  Marsh.  3  Wis.  221;  Frisbee  v.  Langworthy.  11  Wis. 
375;  Cotton  v.  AVatkins.  6  Wi.s.  029;  Selleck  v.  Phelps.  11  Wis.  38ii. 

36  Hills  V.  Smith,  S  Fost.  369;  Torbert  v.  Ilaydeu.  11  Iowa.  435; 
Brijiss  V.  Walkin-.  1  Fost.  72.     See  Stief  v.  Hart.  1  N.  Y.  20. 

"  BuUer  v.  Billups,  101  Ga.  102;  Willis  v.  Yates  (Tex.),  12  S.  W. 
232. 


§  loOb     PERSONAL  PROPERTY  SUBJECT  TO  GARNLSIiMENT.     774- 

or  defrauding  bis  creditors,  he  canuot  recover  tlie  sum 
so  tiausf erred  to  his  fraudulent  vendee,  tliough  the 
transfer  was  without  consideration,  and  upon  an  ex- 
press agreement  that  the  property  should  be  restored 
to  the  fraudulent  transferrer  U]»on  request,  or  when 
the  transfer  had  accomplished  its  purpose.  As  against 
creditors,  we  have  already  shown  that  a  transfer,  made 
with  intent  to  hinder,  delay,  or  defraud  them,  is  abso- 
lutely void,  and  a  Avrit  of  execution  against  the  fraudu- 
lent transferrer  may  be  levied  in  like  manner,  and  with 
like  effect,  as  if  no  transfer  had  been  attempted.  The 
same  rule  is  equally  applicable  to  proceedings  by  garn- 
ishment. If  a  debt  garnished  lias  been  assigned  prior 
to  the  garnishment,  it  is  nevertheless  effective  if  it  can 
be  shown  that  the  assignment  was  fraiululent  as 
against  creditors.'*^^  Property  capable  of  manual  de- 
livery may  also  be  reached  b,y  garnishment  in  some  Of 
the  states  while  in  the  hands  of  the  fraudulent  trans- 
feree, or  a  person  receiving  title  or  possession  from 
him  without  consideration,  or  with  notice  of  the 
fra\ul/'"*  Where  the  claim  is  made  that  the  debt,  or 
other  property  sought  to  be  reached  by  garnishment, 
was  transferred  before  the  service  of  the  writ  is  met 
by  the  allegation  on  the  part  of  the  judgment  creditor 
that  such  assignment  is  fraudulent  and  void  as  against 
him,  we  think  this  issue  must,  in  a  majority  of  the 
states,  be  determined  by  some  independent  action 
brought  by  the  judgment  creditor  against  tlie  claimant 

38  Henry  v.  Murphy,  54  Ala.  240;  Eycrmnn  v.  Krirckliaus,  7  Mo. 
App.  45.5;  Kimball  v.  Lee,  43  N.  .7.  Eq.  1277:  D.iwsdii  v.  Coffey,  12 
Or.  513:  .Tohnson  v.  Horsey,  73  Me.  201:  (Olihr  v.  Xoncniaker,  78- 
Pa.  St.  501;  Ilealey  v.  Butler,  66  Wis.  !>:  Van  Ness  v.  McLeod,  i 
Idaho.  1147. 

39lIarmon  v.  Osgroofl.  151  Mass.  501:  Miliar  v.  Plnss.  11  Wash. 
2.37:  La  Crosse  N.  B.  v.  Wilson,  74  Wis.  3!)1;  l»ali]\uan  v.  Green- 
Avood,  99  Wis.  103. 


775     FEKSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     &  15yb 

of    the  property.     This    is    not,  however,   universally 
true,  for  in  several  of  the  states  the  eonrt  «>ii(  of  whieh 
the  writ    issued,  under  wliicli    ilie    -;iiiiisliiii(iit    was 
made,  has  jurisdiction  to  try  and  determine  all  ques- 
tions of  this  character,  subject  to  the  aulhority  of  the 
appellate  courts  to  review  its  detcnninatiou.^    Where 
one  is  garnished,  and  has  goods  in  his  possession  ac- 
quired from  the  execution  defendant  under  a  mortgage, 
if  it  be  shown  that  the  mortgage  debt  was  created  un- 
der and  in  pursuance  of  a  conspiracy  entered  into  be- 
tween such  defendant  and  the  garnishee  for  the  pur- 
pose of  defrauding  the  creditors  of  the  former,  then 
the  latter  is  answerable  to  the  judgment  creditor  for 
such  goods.'**^     So  where  corn  was  purchased  of  J.,  but 
the  purcliaser  was  afterward  told  that  it  belonged  to 
J.'s  son,  to  whom  a  note  was  given  for  part  of  the  pur- 
chase price,  and  the  imrchaser,  being  garnished  under 
an  execution  against  the  father,  nevertheless  paid  the 
note  to  the  son,  it  w^as  held  that  the  purchaser  was  an- 
swerable on  the  garnishment  on  proof  being  made  that 
the  note  was  taken  in  the  name  of  the  son  to  defraud 
the  creditors  of  the  father.'*^    In  Elaine,  where  B.  held 
a  ship  as  collateral  security  for  a  loan,  under  a  convey- 
ance absolute   in  form   made   by  K.,  and   they  subse- 
quently, in  anticipation  of  an  attachment,  agreed  that 
B.  should  not  execute  any  defeasance,  and  that  the  con- 
veyance should  be  treated  as  absolute,  but  had  a  secret 
understanding  that  B.  would  recouvey  on  ])ayment  of 
the  original  sum  due,  it  was  decided  that  1'.  miglit  be 
charged  as  trustee,  and,  further,  that,  having  claimed 

•»o  People's  Blink  v.  Smith.  7.")  Miss.  7.">;^,  V>o  Am.  St.  Rep.  61S; 
Millar  v.  Plass,  11  AVash.  237:  Fcarey  v.  Cumniin.ss.  41  ^lioli.  .370; 
Doggett  V.  St.  Louis  etc.  Co.,  10  Mo.  203;  Vau  Ness  v.  McLeod,  2 
Idaho,  1149. 

41  Cowles  V.  Coe,  21  Conn.  220. 

<»2  Kesler  v.  St.  John,  22  Iowa,  TiGo. 


§   159o     TEllSOXAL  PROPERTY  SUBJECT  TO  GARNISHMENT.      776 

the  ship  absolutely,  and  not  as  security,  his  claim 
should  be  regarded  as  fraudulent,  and  he  held  for  the 
full  value  of  the  ship,  regardless  of  his  loan."*"*  It  is  not 
the  taking  of  a  fraudulent  transfer,  but  the  reception 
of  property,  which  makes  the  garnishee  answerable. 
Hence,  he  may  exonerate  himself  by  showing  that  the 
property  of  which  he  received  a  fraudulent  mortgage 
or  bill  of  sale  never  came  into  his  possession,  or,  hav- 
ing come  into  his  possession,  was  returned  to  the  de- 
fendant before  the  garnishment  was  served,  or,  being 
an  animal,  has  died,  and  is  therefore  not  subject  to  exe- 
cution.'*^ In  Arkansas,  money  was  given  by  a  husband 
to  his  wife,  who  deposited  it  in  her  name  in  a  bank, 
where  it  was  sought  to  be  garnished  under  a  writ 
against  the  husband.  The  court,  however,  held  that  by 
the  deposit  the  bank  became  a  creditor  of  the  wife; 
and  that  the  question  whether  the  act  of  the  husband 
in  giving  the  money  to  the  wife  was  fraudulent  or  not 
could  not  be  tried  otherwise  than  under  a  bill  in  equity, 
setting  up  the  husband's  insolvency  and  fraudulent 
purpose  in  paying  the  money  to  his  wife,  and  praying 
that  the  money  be  adjudged  to  belong  to  the  husband, 
and  directed  to  be  paid  to  his  creditors.'*^ 

If  an  assignment  be  made  for  the  benefit  of  creditors 
which  is  void,  because  not  in  compliance  with  the  stat- 
ute of  the  state  regulating  such  assignments,  or  be- 
cause it  is  actually  or  constructively  fraudulent,  the 
property  or  its  proceeds  may  be  garnished  while  in  the 
hands  of  the  assignee,^*^  or  of  his  vendee,  who  has 
agreed  to  pay  but  has  not  actually  paid  therefor.'*'" 

•43  Thompson  v.  Pennell,  67  Me.  159. 

44  Gutterson  v.  Morse,  58  N.  H.  529. 

45  Himstedt  v.  German  Bank,  46  Ark.  537. 

46  Kimball   v.   Evans,   58  Vt.   655. 

47  Dixon  V,  Hill,  5  Mich.  404. 


777        PERSONAL  PROPERTY  SUBJFX'T  TO  GARNISHMENT.     §  160 

AVo  have  already  suggested  that  tliere  is  a  growing 
ten(]{  ney  to  support  assiguuieuts  for  the  beuetit  of 
<redilors,  tliougli  defective  in  some  ]>;irlicuhu',  aud 
hence  to  hold  that  property  subject  to  sucli  an  assign- 
ment is  not  liable  to  execution  against  the  assignor, 
but  may  be  held  by  the  assignee  for  the  benefit  of  all 
the  creditors,  though  some  of  them  have  not  assented 
thereto.  Where  this  rule  prevails,  property  which  has 
been  the  subject  of  a  defective  assignment,  or  one  act- 
ually or  constructively  fraudulent,  cannot  be  reached 
by  garnishment.**  On  the  other  hand,  in  those  states 
in  which  an  assignment  for  the  benefit  of  creditors  may 
be  treated  as  void  for  noncompliance  with  statutory 
<-onditions,  or  because  infected  with  actual  or  con- 
structive fraud,  the  property  constituting  the  subject 
thereof  may  be  garnished.'*'* 

§  160.  The  Possession  Necessary  to  Charge  the  Garn- 
ishee.— In  order  to  charge  a  person  as  trustee  or  garn- 
ishee on  acount  of  property  capable  of  manual  delivery, 
he  must  be  in  the  actual,  as  contradistinguished  from 
the  constructive,  possession  of  the  property.*'^**  If  he 
is  not  in  the  actual  possession  of  the  property,  he  must, 
at  least,  have  both  the  right  and  the  power  to  take  im- 
mediate possession,  before  he  can  be  garnished. ""^^    The 

48  Cnliimet  P.  Co.  v.  Haskell  S.  Co.,  144  Mo.  3.31;  Hosni.T  v.  Far- 
ley, 67  N.  H.  590;  Huffman  I.  Co.  v.  Templeton  (Tex.  App.).  14  S.  W. 
1015;  Carter-Battle  G.  Co.  v.  Jackson,  17  Tex.  Civ.  App.  353.. 

49  Baumbach  Co.  v.  Sinjicr.  8G  WHs.  329;  Jaiuosoii  v.  Maxey,  91 
Wis.  503;  Jones  v.  Alford.  98  Wis.  245. 

50  Andrews  v.  Ludlow,  5  Tick.  28;  Willard  v.  Shoafe.  4  Mass.  235; 
Grant  v.  Shaw,  16  Mass.  344,  8  Am.  Dee.  142;  Burrell  v.  Letsou,  1 
Strob.  239;  Drake  on  Attachment,  sees.  482-484. 

51  Lane  v.  Nowell,  15  Me.  86;  Morse  v.  Holt.  22  Me.  ISO:  (Jlenn 
V.  B.  &  S.  Glass  Co.,  7  Md.  287;  ChiUls  v.  Digly,  24  Pa.  St.  23; 
Ward  V.  Lamson,  6  Pick.  358. 


5  ItiO    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        778 

reasou  of  this  is  obvious.  The  object  of  the  garnish- 
iiieut  is  to  require  the  pcn'son  garnished  to  deliver  the 
property  to  the  officer  iu  satisfaction  of  the  writ,  and 
this  delivery  he  canuot  be  called  upon  to  make,  unless 
he  has  either  an  actual  possession  or  an  immediate  and 
uncontested  right  to  take  possession.'" 

"The  garnishee  must  not  only  have  actual  posses- 
sion of  the  defendant's  effects,  but  there  must  be,  ex- 
cept in  cases  of  fraudulent  disposition  of  property, 
privity  between  him  and  the  defendant,  both  of  con- 
tract, express  or  implied,  and  of  interest,  by  which  the 
defendant  would  have  a  right  of  action  or  an  equita- 
ble claim  against  the  garnishee  to  recover  the  property 
for  his  own  use,  either  at  the  present  or  some  future 
time.  The  w^ant  of  privity,  either  of  contract  or  of  in- 
terest, will  generally  prevent  the  garnishee's  being 
charged.  Property  may  be  in  the  garnishee's  hands, 
in  which  the  defendant  has  an  interest,  but  which  the 
garnishee  may  be  under  no  legal  obligation  to  deliver 
to  him;  and  as  the  plaintiff  can  exercise  no  greater  con- 
trol over  the  property,  in  such  case,  than  the  defendant 
could,  the  garnishee  cannot  be  charged.  This  rule  has 
been  held  applicable  to  an  attempt  to  garnish  per- 
sonal property  which  had  been  leased  to  the  person 
garnished,  and  it  w^as  held  that  if,  under  Ids  lease,  he 
had  a  right  to  continue  in  possession  after  the  service 
of  the  writ  upon  him,  the  interest  of  his  lessor  could 
not  thereby  be  garnished. °^ 

There  may,  too,  be  property  in  the  garnishee's  hands, 
the  legal  title  to  which  is  in  the  defendant,  and  for 
which  the  defendant  might  maintain  an  action  against 
the  garnishee,  and  yet  the  latter  not  be  liable  as  garn- 

•■■.s  Rmalloy  v.  Miller,  71  la.  00:  Nickcrson  v.  Chase.  122  Mass.  290. 
"Drake  v.  Catlin,  18  Wash.  316. 


779        ri  RSONAL  rR01M-:RTY  SUB-JKeT  TO  (J AliNlSHMKNT.     g  lOU 

islu'O.  Sucb,  for  iustance,  as  licM  in  New  llaiii[>sliir«'. 
is  (lie  rase  (»f  a  paiiy  wlio  has  tak<'ii  (lie  goods  of  aii 
other  by  trespass,  and  who  (aiiiKd,  in  respect  thereof, 
be  held  as  garnishee  of  the  owner,  though  tln'  legal 
title  is  in  the  latter,  and  he  might  maintain  an  action 
for  the  trespass.  Such,  too,  is  the  case  of  one  in  whom 
the  legal  title  of  goods  is  vested,  but  has  no  interest 
of  his  own  in  them."  '^*  In  conformity  with  these  prin- 
ciples, it  must  bo  held  that  property  which  happens  to 
be  in  the  possession  of  a  person,  either  without  his  con- 
sent,"°  or  without  his  knowledge,'**  does  not  render 
him  liable  to  be  held  as  a  trustee  or  garnishee.  In  a 
few  cases,  it  has  been  decided  that  a  person  could  be 
charged  as  trustee  for  property'  in  his  possession,  in 
which  he  had  no  interest,  which  he  had  no  right  to  de- 
tain, and  upon  which  a  direct  levy  and  seizure  could 
be  made.'"'^  On  the  other  hand,  it  is  said  that  even  a 
special  deposit  of  money  should  be  levied  upon  and 
taken  into  the  officer's  possession,  instead  of  summon- 
ing the  person  in  whose   possession    it   is   as  a  garn- 

54  Drake  on  Attachment,  sec.  485.  For  illnsliations  of  tlio  doc- 
trines here  stated,  see  same  work,  sees.  480-491  inclusive;  and  also 
Skowlie.can  Bank  v.  Farrar,  4(!  INIe.  21Ki;  Despatch  Line  v.  Bellamy 
M.  Co..  12  N.  II.  20.").  37  Am.  Dec.  203;  Simpson  v.  Harry.  1  Dev.  & 
B.  202;  Miller  v.  Richardson,  1  Mo.  310;  Jones  v.  Aetna  Ins.  Co..  14 
Conn.  JlOl;  White  v.  .Jenkins,  IG  Mass.  02;  Wooding  v.  Tuget  Sound 
N.  B..  n  Wash.  527;  Bridgden  v.  Cill,  10  Mass.  ."22;  Wright  v.  Foord. 
5  N.  H.  178;  Pickering  v.  Wendall.  20  N.  H.  222;  He,ss  v.  Shnrb,  7 
ra.  St.  231;  Xeuer  v.  O'Fallon,  18  Mo.  277:  Barnard  v.  Graves.  10 
Pick.  41;  Bean  v.  Bean,  33  N.  H.  270;  l^riggs  v.  Block,  18  Mo.  2S1: 
Huntley  v.  Stone.  4  Wis.  91;  Field  v.  Crawford.  (>  Gray.  IIG;  Kichol- 
berger  v.  Murdock.  10  Md.  373.  09  Am.  Dec  14(1;  Town  v.  Griffith. 
17  N.  H.  1(k);  Folsom  v.  Haskell.  11  Cusli.  47ii.  I'nr  exceptions  to 
the  rule,  see  .Jackson  v.  U.  S.  Bank.  10  Pa.  St.  01. 

OS  Staniels  v.   Itaymond,  4  Cush.  314. 

58  Bingham  v.  Lamping.  20  Pa.  St.  .•]4(t.  07  \m.  Dec.  418. 

67  Brown  v.  Davis,  18  Vt.  211;  Loyless  v.  Hodges,  44  Ga.  017. 


§  160    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        780 

ishee.'**  It  has  been  held  that  property  in  bond  for 
storage  in  a  United  States  custom  house,  though  not 
subject  to  actual  attachment  by  a  state  oflEicer,  is  sub- 
ject to  garnishment  or  trustee  process/''*  The  question 
whether  property  contained  in  a  box  in  the  safe  of  a 
safe-deposit  company  is  subject  to  garnishment,  or  not, 
has  not,  so  far  as  we  are  aware, been  much  considered  or 
finally  determined.  In  one  case  it  was  held  to  be  proper 
to  direct  the  sheriff  to  open  a  box  and  make  an  actual 
seizure  of  property  in  the  custody  of  a  safe-deposit  com- 
pany, the  court  saying:  "Neither  the  safe  nor  the  box 
constituted  any  portion  of  the  defendant's  dwelling, 
and  they  were  not  within  the  protection  which  the  law 
affords  to  that  against  an  officer  acting  under  civil 
process.  They  were  simply  places  of  deposit  and  safe- 
keeping for  the  defendant's  property,  which  the  sheriff 
may  enter  to  make  the  seizure  required  by  law,  in  the 
execution  of  the  process  in  his  hands.  If  that  w^ere  not 
so,  there  would  be  nothing  to  prevent  a  failing  or  in- 
solvent debtor  from  turning  all  his  property  into  valu- 
able securities  or  other  articles  requiring  but  little 
space  for  their  custody,  and  then  placing  them  in  the 
hands  of  a  safe-deposit  company  for  preservation,  and 
defying  all  the  efforts  of  his  creditors  to  satisfy  their 
debts  by  resorting  to  them.  That  would  afford  an  ex- 
pedient for  the  success  of  fraudulent  designs,  which 
might  render  the  laws  of  the  state  for  the  collection  of 
debts  entirely  pow^erless.  No  such  effect  could  be 
given  a  deposit  of  that  nature  without  at  once  defeat- 
ing the  object  apparently  designed  to  be  secured  by, 
the  law  in  rendering  the  debtor's  property  liable  to  the 

5«  Wood  V.  Edgar,  13  Mo.  451. 

69  Peabody  v.   Maguire,   79  Me.   572. 


7S1        PERSONAL  PROrERTY  SUBJECT  TO  GARNISHMENT.     §  IGO 

process  is.sued  in   favor  of    his    ci'cditors    in    actions 
bioiiglit  to  recover  tlieir  just  debts."*** 

In  some  eases,  where  the  possession  of  the  garnishee 
is  sufficient  to  charge  him,  special  circumstances  may 
entitle  him  to  relief.  For  instance,  lie  may  be  a  com- 
mon carrier  who  has  issued  a  bill  of  lading  or  carrier's 
receipt.  If  so,  he  cannot  be  charged  as  garnishee  while 
such  bill  or  receipt  is  outstanding;  for  he  cannot  know 
to  whom  it  is  his  duty  to  deliver  the  property.**^  So 
process  may  be  served  upon  him  when  the  property  is 
in  the  possession  of  one  of  his  servants  at  some  dis- 
tant point.  In  this  event,  he  is  not  chargeable,  unless 
the  service  is  made  "at  such  a  time  and  under  such  cir- 
cumstances that  he,  by  the  exercise  of  reasonable  dili- 
gence, may  communicate  it  to  his  servant  in  time  to 
prevent  the  delivery  to  the  consignee."  It  would  be  the 
height  of  injustice  to  hold  a  railroad  company  liable 
as  garnishees  for  goods  which  their  servants  and  em- 
ployes have  delivered  to  consignees  entitled  to  receive 
them,  having  no  notice,  at  the  time  of  making  such  de- 
livery, that  any  garnishee  process  had  been  served, 
and  before  a  reasonable  time  had  elapsed  after  the 
service  upon  a  distant  officer  of  the  corporation  within 
which  notice  could  have  been  given  to  stop  such  deliv- 
ery." ^''  If  at  the  time  a  garnishment  is  served  upon  a 
common  carrier,  the  property  sought  to  be  reached  is 
not  within  the  state,  the  garnishment  must  necessarily 
be  inelTective.*"'^     There  is  liable  to  be  much  difficulty 

60  United  States  v.  Graff,  G7  Barb.  304. 

61  Walker  v.  G.  H.  &  M.  R.  R.  Co.,  49  Mich.  44G:  see  Bingham  v. 
Lamping,  2G  Ta.  St.  340,  G7  Am.  Dec.  418;  Woods  v.  Half,  44  Tex. 
G33. 

62  Bates  V.  C.  M.  &  St.  P.  R.  R..  60  Wis.  206.  .^.0  Am.  Rep.  360; 
Spooner  v.  Rowland,  4  Allen,  485. 

63  Western  R.  R.  v.  Thornton,  60  Ga.  300;  Montrose  P.  Co.  v. 
Dodson  etc.  M.  Co.,  76  la.  172,  14  Am.  St.  Rep.  213. 


§  IGOa    PEIISONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.      782 

in  applying  tlie  rules  api)licable  to  garnisliment  to  com- 
mon carriers,  in  whose  possession  property  is  and  who 
are  apparently  under  obligation  to  transport  it  else- 
where, according  to  a  shipping  receipt  issued,  or  other 
contract  entered  into  by  them.  If  they  have  fully  per- 
formed the  contract,  and  the  property  sought  to  be 
garnished  is  in  their  possession  as  warehousemen 
merely,  there  is  no  reason  for  exempting  them  from 
garnishment.^'*  In  Missouri  it  is  settled  that  they  are 
subject  to  garnishment  for  property  in  their  posses- 
sion before  any  transit  thereof  has  commenced.^^  In 
Massachusetts,  it  is  said  that  property  is  equally  sub- 
ject to  garnishment  in  the  hands  of  a  carrier,  whether 
the  transit  thereof  has  commenced  or  not.  "There  is 
no  reason  why  a  common  carrier  should  not  be  liable 
to  the  trustee  process  in  the  same  manner  as  other 
bailees  are,  unless  the  nature  of  his  contract  is  such 
that  a  judgment  charging  him  as  trustee  would  not 
])rotect  him  against  a  claim  of  the  defendant  for  a  non- 
<lelivery  of  the  goods  at  their  place  of  destination.  But 
we  are  of  opinion  that  such  judgment  would  bo  a  suffi- 
cient excuse  to  the  trustee  for  a  failure  to  deliver  ac- 
cording to  his  contract."  ^^  In  Minnesota,  on  the  other 
hand,  property  in  the  hands  of  a  carrier  for  transit  be- 
yond the  state  is  not  subject  to  garnishment  on  account 
thereof  after  the  transit  has  begun.*^'  ' 

§  160  a.  The  Garnishment  of  Property  in  the  Posses- 
sion of  a  Servant  or  Agent  has  occasioned  considerable 
judicial  discussion  and  dissension.  Where  possession 
is  held  by  a  servant  or  agent,  the  property  is,  in  con- 

64  Cooley  V.  Minnestoa  etc.  R.  Co.,  53  Minn.  327,  39  Am.  St.  Rep. 
009. 

ssLanda  v.   Ilolck.   129  Mo.  6G3,  50  Am.   St.  Rep.  459. 

esAflams    v.    Scott.    104    Mass.    ir>4. 

67  Sicvcnot  V.  Eastern  Ry.  Co.,  61  Minn.  104. 


783      rEU.'iONAL  I'KOl'EKTY  .^LUIIXT  TO  GAUNlsflMENT.     §  ICOa 

teiiii>lation  of  law,  in  tlu-  possession  of  (Ik*  priiicipul, 
aud  it  may,  and  generally  must,  be  levied  iij)on  in  the 
same  manner  as  like  property  Iteloii^inn  to  ilie  princi- 
l»al  and  held  bv  him  without   I  he  aid  of  anv  servant  or 
agent.     When'  the  jn-operl  \    is  capable  of  manual  de- 
livery, and  may  therefore  be  taken  into  the  possession 
of  the  officer,  the  serA'ice  of  a  notice  of  garnishment  on 
a  servant  or  agent  of  the  defendant  will,  we  apprehend, 
be  universally  conceded  to  be  an  idle  ceremony.     But 
moneys  are  frequently  collected  by  mere  servants  or 
agents,  and  remain  in  their  possession  under  such  cir-  ' 
cumstances  that  they  must  be  regarded  as  mere  cus- 
todians of  such  moneys,  rather  than  as  debtors  of  their 
]»rincipals.    Familiar  instances  of  this  are  treasurers  of 
corporations,  ticket-sellers,  and    station-agents   in  the 
service  of  transportation  companies,  and  collectors  of 
tolls  ui)on  toll-roads.     With  respect  to  these  and  simi- 
lar cases,  it  has  been  held  that  the  possession  of  the 
agent  was  the  possession  of  the  principal;  that  the  re- 
lation  of  debtor  and   creditor  did   not  exist   between 
them;  that  garnishment  must    be  directed    against  a 
third  person;  that  such  agent  is  not  athird  person, with- 
in the  meaning  of  the  rule,  and  tlnM-efore  that  moneys 
collected  and  held  bv  him  cannot  be  reached  bv  jraru- 
ishraent,  under  a  writ  against     his    pi'incii)al.*^*^     The 
reasoning  of  these  cases  seems  quite  faultless,  but  the 
conclusion  reached  is  very  unsatisfactory.     It  would 
place   moneys,   while   in   the   hands   of   servants   and 
agents,  except  when  so  situated  that  it  could  be  seen 
and  seized  by  the  officer,  beyond  the  reach  of  ]»rocess 

68  Fowler  v.  Pittsliurgli  R'y,  '.IT-,  Pa.  St.  212:  TIal!  v.  Filt.r  Mf-.  Co., 

10  Pliila.  370;  Pettingill  v.  Androscoggin.  .")!  Me.  370:   Voorhies  v. 

Denver  II.   Co.,  4  Colo.  App.   4-JS;   Wilder  v.   Shea,   13  Bush.   12S: 

rasey  v.  Davis,  100  ^Ntass.   124:  Neuer  v.   OTallon.  IS  Mo.  277,  ■"!> 

Am.  Dec.  313;  McGraw  v.  Memphis  etc.  K.  11.  Co.,  5  Coldw.  434. 


§  160a    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.       7S4 

against  their  principals,  and  would  enable  the  latter  to 
defy  their  creditors,  notwithstanding  the  existence  of 
ample  funds  for  their  satisfaction.  If  it  is  sought  to 
garnish  moneys  in  the  possession,  in  contemplation  of 
law,  of  a  sheriff  or  other  like  officer,  there  can  be  no 
doubt  that  the  garnishment  should  be  served  upon  him, 
though  such  moneys  are  in  the  actual  custody  of  his 
deputy.  There  is  in  such  a  case  substantially  but  one 
office,  though  the  holder  thereof  is  authorized  to  de- 
pute others  to  act  for  him  in  the  performance  of  his 
duties.^^  Where,  however,  the  person  garnished  and 
the  one  for  whom  he  holds  the  money  garnished  do  not 
occupy  the  relation  of  officer  and  deputy,  but  that  of 
principal  and  agent,  there  seems  an  absolute  necessity 
for  sustaining  a  garnishment  of  moneys  -served  upon 
an  agent  while  such  moneys  are  in  his  possession. 
Especially  is  this  true  when  he  holds  the  moneys  as  an 
officer  of  a  corporation.  Because  of  his  official  relation 
to  the  corporation  the  service  of  a  garnishment  upon 
him  may  be  regarded  as  equivalent  to  a  service  upon 
his  principal,  giving  it  notice  through  him  that  the 
moneys  which  he  holds  for  it  have  been  subjected  to 
garnishment,  and  imposing  a  duty  upon  it,  as  w^ell  as 
upon  him,  of  retainrng  such  moneys,  to  be  applied 
toward  the  satisfaction  of  the  writ  under  which  the 
garnishment  was  made.''**  The  majority  of  the  courts 
have,  therefore,  not  yielded  to  reasoning  leading  to  a 
result  so  unjust  and  so  at  variance  with  a  practical^ 
common-sense  view  of  this  question,  and  have  deter- 

69  Tate  V.  People,  G  Colo.  App.  202. 

70  Center  v.  McQuesten,  18  Kan.  476;  McDonald  v.  Gillett.  69  Me. 
271;  First  N.  B.  v.  Burch,  80  Mich.  242;  Gibson  v.  Park  Bank,  9S 
N.  Y.  87;  Greentree  v.  Rosenstock,  61  N.  Y.  583;  Jepson  v.  Inter- 
national etc.  Alliance,  17  R.  I.  471;  Mayo  v.  Hansen,  94  Wis.  610, 
59  Am.  St.  Rep.  919. 


785       PERSONAL  rKOPEKTY  SUBJECT  TO  GARNISHMENT.     §  IGl 

mined  that  au  agent  or  servant  of  the  defendant,  on 
being  served  with  a  garnishment  against  the  latter, 
becomes  bound  to  retain  any  moneys  in  their  hands 
belonging  to  such  defendant,  and  to  hold  it  subject  to 
such  garnishment/* 

§  161.  Bailee  of  Choses  in  Action.— A  chose  in  ac- 
tion can  only  be  reached  by  proceedings  against  the 
payor  thereof.  It  may  happen  that  a  promissory  note 
is  deposited  with  some  third  person,  for  the  jjurpose 
of  collection,  or  as  collateral  security,  or  merely  for 
safe-keeping.  This  person  is  not  on  that  account  liable 
to  be  summoned  and  charged  as  a  garnishee  or  trus- 
tee." In  some  of  the  states  the  decisions  upon  this 
subject  seem  to  be  grounded  upon  this  principle:  that 
a  chose  in  action  cannot  be  taken  and  held  under  exe- 
cution, and  therefore  that  a  bailee  thereof  cannot  be 
compelled  to  surrender  it  under  proceedings  in  gar- 
nishment, because  it  would  be  idle  to  compel  the  de- 
livery to  the  court  or  officer  of  that  Avhich  could  not 

71  Littleton  Bank  v.  P.  &  O.  R.  R.  Co..  .")S  N.  H.  104;  Gregg  v.  F. 
&  M.  Bank,  80  Mo.  251;  Mann  v.  Buford,  :^  Ala.  312;  37  Am.  Dec. 
(591;  Maxwell  v.  McGee.  12  Ciish.  137;  Central  P.  R.  R.  Co.  v.  Sam- 
mons.  27  Ala.  3S0;  Ballston  Spa  Bank  v.  Marine  Bank,  18  Wis.  490; 
Everdell  v.  S.  &  F.  du  Lac  R.  R.,  41  Wis.  30."');  First  Nat.  Bank  of 
Davenport  v.  D.  &  St.  P.  R.  R.,  45  Iowa,  120. 

'2  Taylor  v.  Huey,  166  Pa.  St.  518;  Grosvenor  v.  F.  &  M.  Bank,  13 
Conn.  104;  Hall  v.  Page.  4  Ga.  428,  48  Am.  Dec.  235,  Clark  v.  Viles, 
32  Me.  32;  Rundlot  v.  Jordan.  3  Me.  47;  Skowhegan  Bank  v.  Farrar, 
46  Me.  293;  Itaiguel  v.  McConnell,  25  Pa.  St.  302;  Deacon  v.  Oliver, 
14  How.  010;  Moore  v.  Philow,  3  Hnmph.  448:  Fitch  v.  W\aite,  5 
Conn.  117;  Fuller  v.  Jewett.  37  Vt.  473;  Lane  v.  Felt,  7  Gray,  491; 
Scofield  V.  White,  29  Vt.  330;  Van  Amee  v.  Jackson,  35  Vt.  173; 
Smith  V.  Wiley,  41  Vt.  19;  Ellison  v.  Tuttle,  26  Tex.  283;  TirreU  v. 
Canada.  25  Tex.  455;  Levisohn  v.  AVaganer.  76  Ala.  412;  Tingley  v. 
Dolby,  13  Neb.  371;  Lochrane  v.  Solomon,  38  Ga.  290.  In  Hancock 
V.  Colyer,  99  Mass.  187.  96  Am.  Dec.  730.  the  garnishees  answered 
that,  at  the  time  of  tlie  service  of  the  writ  upon  them,  they  had  in 
their  hands  a  check  for  a  large  sum  of  money,  payable  to  their  order. 
Vol.  1.— 50 


§  IGl     PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        7SG 

be  seized  or  held  under  the  writ."  In  others  it  is  said 
that  garnishment  cannot  be  effective  except  \yhen  the 
defendant  in  execution  has  a  cause  of  actiop  which 
he  might,  at  the  time  of  the  service,  assert  against  the 
person  garnished,  and  it  is  claimed  that,  as  he  has  no 
cause  of  action  against  his  bailee  for  the  possession 
of  evidences  of  indebtedness  in  the  possession  of  the 
latter  with  the  consent  of  the  defendant  in  execution, 
that  the  judgment  creditor  cannot,  by  garnishment,  ac- 
quire a  cause  of  action  against  the  garnishee,  nor  the 
risfht  to  have  him  either  surrender  the  cause  of  action 
or  collect  it  and  apply  the  proceeds  thereof  to  the  sat- 
isfaction of  the  writ.  In  several  states,  however,  cer- 
tain choses  in  action  are  liable  to  seizure  and  sale 
under  execution;  w^hile  in  other  states,  choses  in  ac- 
tion, if  delivered  to  the  oflQcer,  or  to  the  receiver,  could 
'be  collected  by  suit  against  the  payor  thereof.  It  is 
evident  that  the  reason  assigned  for  hot  requiring  the 
bailee  of  choses  in  action  to  deliver  them  to  an  officer 
acting  by  garnishment,  or  in  proceedings  supplemental 

and  received  by  them  under  special  instructions  from  tlie  judgment 
debtor  to  accept  it  in  satisfaction  of  a  judgment  in  liis  favor  against 
a  third  person.  After  such  service  tbey  presented  the  cbecli,  re- 
ceived the  proceeds,  and  paid  them  over  to  the  defendant  in  execu- 
tion. The  court  said:  "The  cbecli  of  a  third  party,  payable  to  the 
order  of  the  supposed  trustee,  is  not  attachable  by  trustee  process. 
It  is  not  money,  goods,  effects,  or  credits,  in  the  sense  of  the  statute. 
It  may  never  be  paid.  The  liability  of  the  trustee  to  the  principal 
defendant  is  therefore  contingent."  To  tue  same  effect.  Knight  v. 
Bowley,  117  Mass.  551. 

73  Maine  F.  &  M.  Ins.  Co.  v.  Weeks.  7  Mass.  438;  Terry  v.  Coates, 
9  Mass.  5.37;  Dickenson  v.  Strong,  4  Tick.  57;  Andrews  v.  Ludlow, 
5  Pick.  28;  Lupton  v.  Cutter.  8  Pick.  298;  Gore  v.  Clisby,  8  Pick. 
555;  Guild  v.  Holbrook,  11  Pick.  101;  Hopkins  v.  Ray,  1  Met.  79; 
McMeacham  v.  McCorbitt,  2  Met.  352;  Sargeant  v.  Leland.  2  Vt. 
277:  nitfhcock  v.  Egerton,  8  Vt.  202;  Smith  v.  K.  &  P.  R.  R.  Co., 
45   Me.  547;   Price  v.   Brady,   21  Tex.   614. 


7S7        PER.SONAL  PROPERTY  SUBJECT  TO  GAKNISIIMKNT.     §  101 

to  execution,  Las  no  application  to  some  of  the  states, 
and  it  would  be  logical  to  infer  that  where  the  reason 
docs  not  exist  the  rule  would  not  be  enforced.  There 
is,  of  course,  no  doubt  of  the  power  of  the  legislature 
to  make  choses  in  action  in  the  possession  of  a  bailee 
subject  to  garnishment  under  a  writ  against  his 
bailor.'"'*  There  is,  doubtless,  a  reasonable  and  grow- 
ing tendency  to  hold  choses  in  action  in  the  possession 
of  bailees  subject  to  garnishment  where  they  are  sub- 
ject to  execution  if  in  the  possession  of  their  owner,''^ 
But  in  states  where  garnishment  of  a  bailee  of  a  chose 
in  action  is  permitted,  it  is  conceded  that  it  cannot 
be  etrective  where  the  chose  in  action  is  not,  at  the 
service  of  the  writ,  within  the  state.''^**  The  person  gar- 
nished may  have  in  his  possession  a  draft  or  check,  the 
property  of  the  judgment  debtor,  and  which  the  former 
has  the  right  to  collect  either  for  the  purj)ose  of  pay- 
ing the  proceeds  thereof  to  the  judgment  debtor  or  of 
applying  them  in  some  manner  directed  by  the  latter. 
In  such  circumstances  it  has  been  held,  in  a  few  of  the 
states,  that  if  the  person  holding  such  draft  or  check 
is  garnished,  it  is  his  duty  either  to  deliver  it  to  the 
oflficer  serving  the  garnishment,  or  to  collect  it  and  pay 
the  proceeds  thereof  to  such  officer,  or  so  much  of  them 
as  may  be  necessary  to  satisfy  his  writ.''^''  The  weight 
of  authority,  however,  is  to  the  effect  that  if  the  per- 
son having  the  check  or  draft  in  his  possession  has  not 

7*  Thus  in  New  Hampshire,  a  bailee  of  choses  in  action  can  how 
be  held  as  a  trustee.  Fling  v.  Goodall,  40  N.  H.  203.  But  it  was 
otherwise  until  the  passage  of  the  present  statute.  Stone  v.  Dean. 
5  N.  H.  502;  Fletcher  v.  Fletcher.  7  N.  H.  452,  28  Am.  Dec.  359; 
Howland  v.   Spencer,  14  N.   H.   5S0. 

75  Stevens  v.  Dillman,  86  111.  233;  Trunliey  v.  Crosby,  33  Minn. 
4&4;  Boore  v.  Mcintosh,  62  Miss.  744. 

70  Bowen  v.  Pope.  125  111.  28. 

77  Stevens  v.  Dillman,  86  111.  233;  Storm  v.  Cotzhausen,  38  Wis. 
139. 


§  161a    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.      7S8 

credited  the  defendant  in  execution  with  the  amount 
thereof  prior  to  the  service  of  the  writ,  so  as  to  create 
between  them  the  relation  of  debtor  and  creditor,  then 
that  the  garnishment  of  the^  h(dder  of  such  check  or 
draft  is  ineffective,  and  does  not  impose  upon  him  any 
obligation  to  surrender  it  to  the  officer  holding  the  exe- 
cution, or  to  collect  it  and  pay  the  proceeds,  or  any 
part  thereof,  to  him,  and  that  he  may,  on  the  contrary, 
if  he  sees  proper,  collect  such  proceeds  and  pay  them 
to  the  defendant  in  execution,  or  make  such  other  dis- 
position of  them  as  the  latter  may  direct.  One  of  the 
reasons  sometimes  given  for  denying  effect  to  the  gar- 
nishment of  a  bailee  or  holder  of  a  check  belonging 
to  the  defendant  in  execution  is,  that  it  is  uncertain 
whether  the  check  will  be  collected,  and  therefore  that 
the  liability  of  the  holder  of  the  check  to  such  defend- 
ant is  of  that  contingent  character  which  is  fatal  to 
any  attempt  to  create  a  liability  by  garnishment  pro- 
ceedingsJ^  Though  choses  in  action  in  the  possession 
of  a  bailee  are  by  the  laws  of  a  state  subject  to  garn- 
ishment, it  must  affirmatively  appear  that  at  the  time 
of  such  garnishment  such  choses  were  in  possession  of 
the  person  garnished.  Where  he  did  not  have  such 
possession,  no  liability  against  him  is  created  by  the 
fact  that  he  had  had  it  in  his  possession  prior  to  the 
service  of  the  writ,  and  subso(iuently  to  that  time  re- 
ceived the  purchase  price  of  the  choses  in  action  at- 
tempted to  be  garnished.''^ 

§  161  a.    The  Situs  of  Debts  for  the  Purpose  of  Gar- 
nishment is  a  subject    respecting  which    tlie  most  ir- 

7s  Craft  V.  Summersoll,  93  Ala.  430;  Hancock  v.  Collyer,  r>9  Mass. 
187^  96  Am.  Dec.  730;  Knight  v.  Bowley,  117  Mass.  551;  Hanaford 
V.  Hawkins,  18  R.  I.  432. 

70  Fleming  t.  Bator,  20  Colo.  238. 


7S9      PERSONAL  PROrEIlTY  SUBJECT  TO  GARNISHMENT.     §  ICla 

rpconcihible  conflict  of  judicial  o])iiiioii  exists,  and  we 
know  not  how  it  may  be  removed  or  even  diminished. 
For  most  purposes  the  situs  of  an  obligation  is  at  the 
place  where  the  person  to  whom  it  is  due  is.  In  the 
absence  of  any  contract  stipulations  to  the  contrary, 
it  can  be  satislied  onl}'  by  performance  accepted  or  ten- 
dered to  him  there,  and,  for  the  purposes  of  taxation, 
it  may  be  there  assessed  to  him  as  property.  We  be- 
lieve that,  upon  principle,  the  rule  that  the  domicile 
of  the  creditor  is  the  place  of  the  situs  of  a  debt  due 
to  him  is  the  one  best  sustained  by  tlu?  authorities,  and 
must  ultimately  prevail  and  be  recognized  as  control- 
ling garnishment  proceedings  as  well  as  other  legal 
transactions,*®  except  that  where  the  domicile  of  the 

80  Swetlish-Amorican  N.  B.  v.  BlwK'kt'r,  72  Miun.  3S3.  Louls- 
Tille  etc.  Co.  V.  Nash,  118  Ala.  477.  This  decision  talces  a  more 
extreme  view  than  any  other  falling  within  our  observation  re- 
specting the  situs  of  a  debt  for  the  purposes  of  garnishment,  in 
maintaining  not  only  that  such  situs  is  at  the  domicile  of  the  cred- 
itor, but,  furthermore,  that  it  is  not  within  the  power  of  another 
state  to  change  such  situs  so  as  to  ma  Ice  the  debt  subject  to  gar- 
nishment within  its  limits.  The  question  is  so  tlioroughly  consid- 
ered by  the  court  that  we  feel  justified  in  quoting  substantially 
its  entire  opinion.  It  is  as  follows:  "The  case  presented  is  ruled, 
with  respect  to  both  questions,  by  the  cases  of  Railroad  Co.  v. 
Dooley,  78  Ala.  524,  and  Railroad  Co.  v.  Chumley,  92  Ala.  317.  In 
the  former  case  it  was  held  that  a  debt  due  by  a  foreign  corpora- 
tion to  an  employ*'  in  the  state  of  its  creation,  although  it  was 
doing  business  in  this  state  also,  could  not  be  subjected  by  a  cred- 
itor in  this  state  by  attachment  against  the  nonresident  creditor 
and  garnishment  against  the  corporation.  In  the  latter  we  decided 
that  the  payment  by  a  railroad  corporation  created  by  the  laws  of 
this  state,  but  doing  business  also  in  Tennessee,  of  a  judgment  ren- 
dered against  it  in  Tennessee  under  a  garnishment  issued  on  a 
judgment  recovered  in  that  state  against  an  employe  resident  in  this 
state,  was  no  defense  to  an  action  by  the  employg  to  recover  the 
wages  due  him  for  work  done  in  this  state,  in  the  absence  of  evi- 
dence showing  that,  by  the  statutes  of  Tennessee,  the  court  had 
acquired  jurisdiction  of  the  debt  sought  to  be  reached  and  sub- 
jected.   In  both  of  the  above  cases  it  was  expressly  decided  that 


§  161a    PERSONAL  PROl'ERTY  ISUBJECT  TO  GARNISHMENT.      790 

creditor  and  debtor  is  in  different  states  or  countries, 
or  where  the  debtor  cannot  be  subjected  to  suit  in  the 
state  of  country  where  the  creditor  is  or  resides,  be- 
cause its  courts  do  not  have  jurisdiction  over  him,  he 
may  be  pursued  in  whatever  state  or  country  he  may 
be  found. 

tlie  situs  of  a  debt  for  the  purpose  of  garnishment  is  at  the  domicile 
of  the  creditor,  and  not  that  of  the  debtor;  and  this  fact  is  the 
true  foundation  for  the  proposition  that  a  state  has  no  jurisdiction 
over  a  debt  due  to  a  nonresident,  and  payable  without  the  state 
of  suit,  in  the  absence  of  personal  service  on  the  creditor  within  the 
state,  or  his  voluntary  appearance  in  a  proceeding  in  which  juris- 
diction over  it  is  sought  to  be  exercised.  If  it  be  conceded  that  a 
debt  due  by  a  resident  of,  or  a  corporation  doing  business  in,  one 
state,  to  a  resident  in  another  state,  is  not  property  within  the 
state  of  the  debtor's  residence,  no  legislation  by  the  latter  state 
can  give  it  a  situs  there  for  the  purpose  of  enabling  its  citizens, 
or  other  persons  resorting  to  its  courts,  to  subject  it  to  the  payment 
of  claims  against  the  creditor  by  garnishing  the  person  or  corpora- 
tion from  whom  it  is  due.  If  it  has  no  situs  within  the  debtor's 
state,  in  the  absence  of  legislation,  any  legislation  attempting  to 
give  it  such  situs,  or  to  prescribe  the  manner  of  service  on  either 
the  debtor  or  the  nonresident  creditor,  by  which  jurisdiction  over 
it  may  be  acquired,  unless  by  personal  service  on  the  creditor  with- 
in the  state,  or  his  voluntary  appearance,  would  be  as  nugatory  and 
ineffectual  to  dispose  of  the  creditor's  property  in  the  debt  as  would 
be  legislation  attempting  to  acquire  jurisdiction  over  tangible  prop- 
erty situated  without  the  state.  The  subject-matter  of  such  legis- 
lation, namely,  the  property  over  which  it  is  attempted  to  acquire 
jurisdiction,  is  entirely  beyond  the  power  and  control  of  the  state. 
In  the  view  we  take  of  the  question,  the  condemnation  of  a  debt 
due  to  a  nonresident,  without  personal  service  within  the  state  of 
suit  on  the  defendant,  or  owner  of  the  debt,  or  his  voluntary  ap- 
pearance, is  without  due  process  of  law,  and  it  seems  manifest  that 
a  state  cannot  make  that  due  process  of  law  which  is  not  such. 
Martic  v.  Railroad  Co.,  50  Hun,  347;  3  N.  Y.  Supp.  82.  It  is  imma- 
terial, also,  under  this  concession,  whetlier  the  corporation  garn- 
ishee, if  the  garnishee  be  a  corporation,  is  one  created  by  the  lawa 
■  of  the  state  where  the  debt  is  sought  to  be  condemned,  or  is  a  for- 
eign corporation,  doing  business  therein  by  permission  of  the  state. 
The  question  is  not  one  of  jurisdiction  over  the  garnishee,  but  one 
of  jurisdiction  over  property  situated  without  the  state,  and^ 
through  the  seizure  of  such  property,  over  the  owner  thereof. 


791      rp:USONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  lliU 

If  the  debtor  and  creditor  reside  iu  different  states 
or  countries,  this  fact  does  not  confer  jurisdiction  over 
the  debtor  upon' the  courts  of  the  state  or  country  in 

"The  ripht  of  a  state  to  inquire  into  the  obligations  of  a  nonresl^ 
dent,  and  its  jurisdiction  to  attach  his  property  to  answer  for  such 
obligations,  is  founded  solely  ou  the  fact  that  each  state  has  ex- 
clusive control  and  jurisdiction  over  the  property  situated  within 
its  territorial  limits,  and  the  inquiry  can  be  carried  only  to  the 
extent  necessary  to  control  the  disposition  of  such  property.  If 
there  be  no  personal  service  on  the  defendant  or  owner  of  the  prop- 
erty, or  appearance  by  him,  the  jurisdiction  cannot  extend  beyond 
binding  the  property  attached  or  effects  garnished.  Consequently, 
if  the  nonresident  has  no  property  within  the  state,  and  there  has 
been  no  personal  service  on  him  within  the  state,  or  voluntary  ap- 
pearance by  him,  there  is  nothing  upon  which  its  tribunals  can  ad- 
judicate; and  any  judgment  rendered  under  such  circumstances, 
whetlier  affecting  the  person  only,  or  the  property  also,  would  be 
void  for  want  of  jurisdiction  of  the  person  and  of  the  subject- 
matter.  Bank  v.  Clement,  100  Ala.  280;  Penuoyer  v.  Neff,  95  U.  S. 
714;  St.  Clair  v.  Cox,  lOG  U.  S.  350;  Freeman  v.  Alderson,  119  U.  R. 
185.  It  was  held  in  Pennoyer  v.  Neff,  supra,  that,  in  a  suit  on  a 
money  demand  against  a  nonresident,  substituted  service  of  process 
by  publication  is  effectual  only  where,  in  connection  with  process 
against  the  person  for  the  commencement  of  the  action,  property 
within  the  state  is  brought  under  the  control  of  the  court,  and  sub- 
jected to  its  disposition  by  process  adapted  to  that  purpose,  or  where 
fhe  judgment  is  sought  as  a  means  of  reaching  said  property  or  of 
affecting  some  interest  therein;  and  that  a  judgment  by  default 
against  a  nonresident  upon  such  service  only,  no  property  of  the 
defendant  within  the  state  having  been  seized  prior  to  the  rendition 
of  the  judgment,  was  without  due  process  of  law,  and  void,  ami 
the  title  of  defendant  to  property  within  the  state  sold  under  exe- 
cution issued  on  such  judgment  was  not  devested  by  such  sale,  not- 
withstanding the  statutes  of  the  state  of  suit  authorized  service  in 
this  manner  upon  a  nonresident,  and  attempted  to  protect  the  title 
of  a  purchaser  in  good  faith  of  property  sold  under  execution  issued 
on  such  judgment.  In  the  opinion  by  Mr.  Justice  Field  it  is  said: 
'No  state  can  exercise  direct  jurisdiction  and  authority  over  persons 
or  property  without  its  territory.  The  several  states  are  of  equal 
dignity  and  authority,  and  the  independence  of  one  implies  the  ex- 
clusion of  power  from  all  others.'  And  so  it  has  been  laid  down  by 
jurists  as  an  elementary  principle  that  the  laws  of  .one  state  have 
no  operation  outside  of  its  territory,  except  so  far  as  is  allowed  by 
comity;  and  that  no  tribunal  established  by  it  can  extend  its  process 


§  161a    PERSONAL  PROrERTY  SUBJECT  TO  GARNISHMENT.      792 

which  the  creditor  resides.  If  he  wishes  to  enforce  the 
obligation  against  his  debtor  personally,  he  must 
necessarily  bring  an   action  against  him  in   a   state 

beyond  that  territory,  so  as  to  subject  cither  persons  or  property  to 
its  decisions.  "And  any  exertion  of  authority  of  this  sort  beyond 
tliis  limit,"  says  Story,  'is  a  mere  ntillity,  and  iuoapalile  of  binding 
such  persons  or  property  in  any  other  tribunal."  This  decision,  in- 
volving, as  it  did,  a  construction  of  the  fourteenth  amendment  of 
the  federal  constitution,  and  its  effect  on  judgments  rendered  against 
nonresidents,  Avitliout  personal  service  or  voluntary  api)ea ranee,  and 
without  a  preliminary  seizure  of  property  of  the  defendant  vpith- 
in  the  state  of  suit,  is  binding  upon,  and  must  be  followed  by, 
the  courts  of  the  several  states.  It  necessarily  results  from  the' 
)n-inciples  declared  therein  that  if  the  situs  of.  a  debt  for  the  pur- 
pose of  garnishment  be  at  the  domicile  of  the  creditor,  and 
the  debt  be  not  property  within  the  garnishee  state,  any  .iudg- 
ment  rendered  against  the  creditor,  as  well  as  any  judgment  the 
effect  of  which  is,  on  its  face,  to  discharge  the  debt  due  to  the 
nonresident  by  requiring  the  debtor  the  garnishee  to  pay  it  to  the 
nonresident's  creditor,  is  without  due  process  of  law  and  void, 
unless  there  was  per.sonal  service  on  the  defendant  within  the  state, 
or  a  voluntary  appearance  by  him.  It  necessarily  follows,  also, 
that  the  payment  of  such  judgment  by  the  garnishee  is  no  protection 
to  him  in  a  subsequent  suit  by  his  creditor  to  recover  the  debt,  and 
that  any  legislation  by  the  garnishee  state  attempting  to  acquire 
jurisdiction  over  the  debt,  by  declaring  it  to  be  property  within 
its  limits,  subject  to  seizure  by  service  of  process  on  the  garuisliee 
and  service  by  publication  oh  the  nonresident  defendant,  'is  a  mere 
ntillity,  and  incapable  of  binding  such  persons  or  property  in  any 
other  tribunal.' 

"Any  attempt  to  reconcile  the  conflicting  authorities  on  the  ques- 
tion of  the  situs  of  a  debt  for  the  purpose  of  garnishment  would 
l»e  vain,  but  analogy,  as  well  as  reason  and  justice  to  the  creditor, 
would  seem  to  fix  it  at  the  domicile  of  the  creditor,  and  forbid  its 
seizure  or  any  change  in  the  ownership  thereof,  by  the  law  or  pro- 
cedure of  any  other  state.  It  is  now  well  settled  tii;it  a  debt  due 
)iy  an  insolvent  to  a  nonresident  is  property  within  the  creditor's 
state,  and  that  no  law  or  decree  of  the  debtor's  state  discharging 
his  debts  can  operate  to  discharge  the  debt  due  to  the  noiuesident. 
Brown  v.  Smart,  14.")  U.S.  4.')4;  Denny  v.  Bennett,  128  U.S.  480:  Pattee 
V.  Paige,  163  Mass.  353;  47  Am.  St.  Rep.  459;  Bank  v.  Batclieller. 
151  Mass.  589;  Wilson  v.  Matthews,  32  Ala.  345.  It  is  equally  well 
settled  that,  for  the  purpose  of  taxation,  a  debt  has  its  situs  at  the 
domicile  of  the  creditor.    State  Tax  on  Foreign  Held  Bonds,  15  Wall. 


793      PERSONAL  I'ilUl'EllTV  SUBJECT  TO  GAKNISHMKNT.     §  IGU 

wlu'iciu  he  can  be  found  and  whose  t-oiirls  conse- 
ijucntly  have  jurisdiction  over  him.  In  like  circum- 
stances, if  creditors  of  the  creditor  wisli  to  ;:,arnisli  the 

aoo;  Kirtlaiid  v.  lloUhkiss,  100  U.  S.  -J'.U;  In  ro  Rroiisori's  Estate, 
15U  N.  Y.  1,  55  Am.  St.  liep.  {Jo2;  I'olltr  v.   Koss.  'Sd  N.  J.  L.  517; 
Boyd  V.  City  of  Seliua.  9(5  Ala.  I.jO.     In  tlio  opinion  of  the  State 
Tax  Case  it  was  said:   'But  debts  owing  by  a  corporation,  like  debts 
owing  by  individuals,  are  not  property  of  the  debtors  in  any  sense. 
Tlu-y  are  obligations  of  the  debtors,  and  only  possess  value  In  the 
hands  of  the  creditors— with  them  are  property,  and  in  their  hands 
they  may  be  taxed.    To  call  debts  property  of  the  del)tors  is  simply 
to  misuse  terms.     All  the  property  there  can  be,  in  the  nature  of 
things,  in  the  debts  of  corporations,  belongs  to  the  creditors  to  whom 
they  are  payable,  and  follows  their  domicile,  whatever  they  may  be. 
Their  debts  can  have  no  locality  separate  from  the  parties  to  whom 
they  are  due.'     We  are  unable  to  perceive  any  sound  reason  for 
giving  to  a  debt  a  different  situs  for  the  purpose  of  garnishment, 
and  none,  satisfactory  to  us,  has  been  offered  by  these  decisions 
which  give  it  a  different  situs  for  this  purpose  only.     If  a  debt  due 
to  a  nonresident  canuut  be  discharged  by  an  insolvency  law  or  de- 
cree of  the  debtor's  state,  because  of  a  want  of  jurisdiction  over 
the  creditor  and  the  debt,  a  like  reason  should  forbid  its  discharge 
by   garnishment   proceedings.     Those   courts   which   adhere  to   th« 
contrary  view  are  not  themselves  in  accord  as  to  the  theory  upon 
which  they  can  acquire  jurisdiction  over  such  debts.     In  some  it  is 
held  that,  for  the  purpose  of  garnishment,  a  state  has  the  power 
to  fix  the  situs  of  a  debt  at  the  domicile  of  the  debtor,  though  the 
creditor  be  a  nonresident.    Williams  v.  lugersoll,  89  N.  Y.  508;  Doug- 
lass V.  Insurance  Co.,  138  N.  Y.  209,  34  Am.  St.  Rep.  448;  Bragg  v. 
Gaynor.  85  Wis.  468.    As  we  have  seen  above,  the  exercise  of  such 
power  would  be  a  nullity  in  its  effect  upon  the  person  of  a  non- 
resident or  the  debt  due  him.     Others  hold  that  the  situs  of  a  debt 
is  wherever  a  suit  may  be  maintained  to  vecover  it.     Harvey  v. 
Railway  Co.,  50  Minn.  400;  Manufacturing  Co.  v.   Lang.   127   Mo. 
242.  48  Am.  St.  Rep.  026.    As  a  general  proposition,  this,  as  we  have 
seen,  is  incorrect,  and,  as  limited  and  applied  to  garnishments  only, 
it  seems  to  us,  merely  an  arbitrary  distinction.     Moreover,   if  its 
situs  is  in  the  state  of  the  debtor  only  by  reason  of  the  fact  that 
a  suit  to  recover  it  may  there  be  maintained,  a  debt  due  by  a  foreign 
corporation  doing  business  in  a  state  other  than  that  of  its  creation. 
to  a  nonresident  of  such  state,  could  not  be  reached  by  a  garnisii- 
ment  sued  out  in  the  state,  in  the  absence  of  a  statute  expressly 
authorizing  it  to  be  sued  therein  on  a  cause  of  action  arising  with- 
out the  state;  for  it  is  well  settled,  as  a  general  rule,  that  no  action 


§  ICla    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.      TJi 

credit  due  bim  aud  to  obtain  the  riglit  to  assert  it 
against  liis  debtor,  they  must  necessarilj-  institute  pro- 
ceedings in  a  state  wherein  the  latter  can  be  served 
with  process  and  wherein  a  personal  judgment  can  be 
obtained  against  him.     Whether  the  situs  of  the  debt 

in  personam  can  be  maintained  against  a  foreign  corporation,  unless 
the  contract  sued  on  was  made  or  was  to  be  performed,  or  the 
injury  complained  of  was  suffered,  in  the  state  in  which  the  action 
is  brought.    Railroad  Co.  v.  Carr,  76  Ala.  388,  52  Am.  Rep.  339;  St. 
Clair  V.  Cox,  106  U.  S.  350.     And  it  has  been  expressly  held  that 
a  nonresident  creditor  of  a  corporation  cannot  have  his  property 
in  a  debt  seized  in  a  state  to  which  the  corporation  may  resort 
merely  for  the  purpose  of  doing  business  through  its  agents,  when 
the  claim  arose  on  a  contract  not  to  be  performed  within  the  state 
of  suit.    Reimers  v.  Manufacturing  Co.,  70  Fed.  Rep.  573;  Douglass 
V.  Insurance  Co.,  138  N.  Y.  209,  34  Am.  St.  Rep.  448.    We  prefer  to 
adhere  to  the  principle  on  which  our  former  cases  were  decided, 
that  the  situs  of  a  debt  is  at  the  domicile  of  the  creditor  for  the  pur- 
pose of  garnishment  as  well  as  for  other  purposes.     Railroad  Co. 
V.  Dooley,  78  Ala.  524;  Railroad  Co.  v.  Chumley,  92  Ala.  317;  Reno, 
Nonres.  §  138  et  seq.;  Railroad  Co.  v.  Smitli,  70  Miss.  344,  35  Am. 
St.   Rep.   G51;  Central  T.  Co.  v.  Chattanooga  etc.  R.  Co.,  G8  Fed. 
CS5;  Railway  Co.  v.  Sharitt,  43  Kan.  375,  19  Am.  St.  Rep.  143;  Renier 
V.  Hurlbut,  81  Wis.  24,  29  Am.  St.  Rep.  850.     Adhering  in  tIMs  respect 
to  the  situs  of  the  debt  due  from  appellant  to  appellee,  we  are  con- 
strained  by  the  decisions  of  the  Supreme  Court  of  the  United  States, 
cited  above,  to  hold  that  the  judgment  of  the  Tennessee  court,  oper- 
ating, as  it  did,  on  its  face,  to  condemn  and  devest  appellee's  prop- 
erty in  the  debt  over  which  it  had  not  acquired  jurisdiction  by 
personal  service  within  the  state  on  appellee,  or  by  his  voluntary 
appearance,  was  without  due  process  of  law,  and  absolutely  void  for 
want  of  jurisdiction  of  the  res,  the  debt,  or  the  person  of  its  owner. 
To  such  judgments  the  constitution  of  the  United  States  does  not 
require  that  any  faith  and  credit  be  given;  the  constitutional  pro- 
vision that  'full  faith  and  credit  shall  be  given  in  each  state  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other  state,' 
and  the  act  of  congress  providing  for  the  mode  of  authenticating 
such  acts,  records,  and  proceedings,  being  now  construed  as  appli- 
cable 'only  when  the  court  rendering  the  judgment  had  jurisdiction 
of  the  parties  and  of  the  subject-matter,  and  not  to  preclude  an  in- 
quiry into  the  jurisdiction  of  the  court  in  which  the  judgment  was 
rendered,  or  the  right  of  the  state  itself  to  exercise  authority  over 
the  person  or  the  subject-matter.    Pennoyer  v.  NefC,  95  U.  S.  714.'  " 


795      TEilSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  ICla 

may  properly  be  regarded  in  the  one  state  or  the  otlier, 
it  is,  in  either  conclusion,  certain  that  the  garnish- 
ment must  be  made  where  the  debtor  is,  or  that  it 
cannot  be  made  at  all.  Hence,  we  concede  that  under 
these  circumstances  the  debtor  may  be  garnished 
wherever  he  resides  and  is,  though  his  creditor  resides, 
and  the  contract  obligation  was  created,  in  another 
state..®*  Where  the  creditor  and  debtor  reside  in  dif- 
ferent counties  of  the  same  state,  it  may  be  admitted 
that  he  may  be  garnished  in  the  county  of  his  residence, 
irrespective  of  the  fact  that  his  creditor  resides  in  a 
different  part  of  the  state.*^ 

It  has  been  suggested  that  the  place  where  a  debt 
is  made  payable  may  be  considered  in  determining  its 
situs  for  the  purposes  of  garnishment,  and  that,  though 
the  general  rule  prevails  in  a  state  subjecting  to  gar- 
nishment a  debt  owed  by  a  debtor  resident  therein, 
irrespective  of  the  place  of  the  domicile  of  his  creditor, 
that  an  exception  to  this  rule  may  exist  where  the 
obligation  was,  by  its  terms,  payable  in  some  other 
state,**"  but  this  is  doubted  by  other  decisions  in  the 
same  state.®* 

Many  courts  maintain  that  the  situs  of  a  debt  for 
the  purposes  of  garnishment  is  at  the  domicile  of  the 
debtor,  or  that  it  has  no  situs  w^hatsoever,  and  hence 
may  be  reached  by  garnishing  him  wherever  an  action 
may  be  brought  against  him,  irrespective  of  the  domi- 
cile of  his  creditor.  This  view  was  at  one  time  sus- 
tained by  a  preponderance  of  the  authorities  in  this 

81  Cofrode  v.  Gartner,  79  Mich.  332. 

82  Root  V.  Davis,  51  Oh.  St.  29. 

83  Green's  Bank  v.  Wickham,  23  Mo.  App.  003;  Walker  v.  Falr^ 
banks.  5.5  Mo.  App.  478. 

«*Wyeth  etc.  M.  Co.  v.  Lang,  54  Mo.  App.  147. 


§  ICla    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.       796 

country,'^  tboiigli  we  think  it  is  gradually  giving  way 
to  considerations  hereafter  to  be  mentioned. 

One  of  the  inherent  difficulties  in  sustaining  and  en- 
forcing the  garnishment  of  a  debtor  made  in  a  state 
wherein  his  creditor  does  not  reside  is  that  the  latter 
cannot  be  brought  before  the  court  so  that  there  can 
be  a  judicial  ascertainment,  binding  upon  him,  respect- 
ing the  existence  and  amount  of  the  alleged  indebted- 
ness. Furthermore,  the  laws  of  some  of  the  states 
exempt  from  execution  various  classes  of  indebtedness, 
and  there  is  a  constant  effort  to  avoid  the  effect  of 
these  exemption  laws  by  bringing  actions  and  serving 
garnishments  in  other  states,  wherein  neither  they  nor 
laws  of  similar  purport  exist.  Corporations  organized 
and  having  their  domicile  in  one  state  are  usually  per- 
mitted to  do  business  in  another  in  which  they  have 
agents,  and  they  are  usually  required  to  submit  to  suit 
in  those  states  and  to  permit  process  to  be  served  upon 
agents  resident  therein.  It  therefore  frequently  hap- 
pens that,  though  a  corporation  and  a  person  to  whom 
it  is  indebted  have  their  domicile  in  the  same  state, 
attempts  are  made  to  garnish  it  in  another  and  per- 
haps far  distant  state,  whose  courts  do  not  have  juris- 
diction over  its  creditors.  If,  as  sometimes  happens, 
the  debt  due  from  it  is  exempt  from  execution  or  gar- 
nishment in  the  state  wherein  it  and  its  creditor  reside, 

^5  Harwell  y.  Sharp,  85  Ga.  124,  21  xim.  St.  Rep.  149;  Hannibal 
etc.  Co.  V.  Crane,  102  111.  249,  40  Am.  Rep.  .ISl;  Lancashire  I.  Co.  v. 
CJorbetts,  165  111.  594,  56  Am.  St.  Rep.  295;  Willard  v.  Sturm,  96  la. 
5.55;  German  Bank  v.  American  F.  I.  Co..  8.*]  la.  491.  ?.2  Am.  St.  Rep. 
31G;  Burlington  etc.  Co.  v.  Thompson,  31  Kan.  180,  47  Am.  Rep. 
497;  Wyetb  M.  Co.  v.  Lang,  54  ISIo.  App.  147;  Ilowland  v.  Chicago 
etc.  R.  Co..-  134  Mo.  474;  Wyeth  M.  Co.  v.  Lang,  127  :\Io.  242.  48  Am. 
St  Rep.  626;  Morgan  v.  Neville,  74  Pa.  St.  52;  Cross  v.  Brown,  19 
R.  I.  220;  Nichols  v.  Hooper,  61  Vt.  295;  Tower  v.  Wilder.  57  Vt. 
622;  Neufelder  v.  German  A.  I.  Co.,  6  Wash.  336,  36  Am.  St.  Rep. 
166;  Bragg  v.  Gaynor,  85  Wis.  468. 


797      PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.    §  ICla 

but  not  in  the  other  state,  it  must  fuUow,  if  it  is  sub- 
ject to  ganiishment  in  the  other  state,  that  its  creditor 
may  thereby  lose  the  benefit  of  the  exemption  laws  of 
his  domicile,  or  that  the  corporation  may  be  compelled 
to  pay  the  debt  in  both  states;  in  the  state  where  j^ar- 
nished,  because  the  debt  is  not  there  exempt  from  exe- 
cution, and  also  in  the  state  where  it  and  its  creditor 
reside,  because  the  debt  is  there  exempt  from  execu- 
tion, and  the  creditor  cannot  be  deprived  of  such  ex- 
emption by  the  laws  of  a  state  to  whose  jurisdiction 
he  is  not  subject.  Ilence,  we  think  the  better  view  is, 
that  in  such  circumstances,  for  the  purposes  of  gar- 
nishment, the  corporation  must  be  deemed  to  have  its 
domicile  only  in  the  state  in  which  it  was  created,  and 
that  wiienever  a  debtor  and  creditor  have  the  same 
domicile,  the  debt  must  be  regarded  as  having  its  situs 
there  and  as  exempt  from  garnishment  elsew^here.^ 

If  a  corporation  is  chartered  and  carries  on  business 
in  two  or  more  states,  it  has  been  held,  in  Tennessee, 
that  a  debt  due  from  it  may  be  garnished  in  either 
state,  though  the  person  whose  debt  is  thus  sought  to 
be  garnished  is  not  a  resident  thereof.'^'' 

86  Alabama  etc.  Co.  v.  Cbumley.  92  Ala.  217;  Green  v.  Farmers'  etc. 
Bank.  24  Conn.  352;  National  Bank  r.  Fnrtich.  2  Marvel.  3.j.  G9  Am. 
St.  Rep.  99;  Everett  v.  Connecticut  M.  I.  Go.,  4  Colo.  App.  509;  Asso- 
ciated Tress  v.  United  Tress,  104  Ga.  51;  Swedish-American  N.  B.  v. 
Bleecker,  72  Minn.  383;  Illinois  C.  R.  Co.  v.  Smitb,  70  Miss.  344. 
35  Am.  St.  Rep.  651;  Wright  v.  Cbicajro  etc.  Co.,  19  Neb.  175,  56 
Am.  Rep.  747;  American  C.  I.  Co.  v.  Hettler,  37  Neb.  849,  40  Am. 
St.  Rep.  .522;  Sawyer  v.  Tlioniiisdu,  24  N.  11.  510;  Lawrence  v.  Smitlu 
45  N.  H.  533,  86  Am.  Dec.  1S3;  Osgood  v.  Maguire,  61  N.  T.  521;  Wil- 
liams V.  Ingersoll,  89  N.  Y.  .5()S:  Douglas  v.  Thoeiiix  1.  Co.,  1:>S  N.  Y. 
209,  34  Am.  St.  Rep.  448;  Smith  v.  Tabor,  16  Tex.  Civ.  App.  154, 
Renier  v.  Hurlbut,  81  Wis.  24,  29  Am.  St.  Rep.  SjO;  Morawetz  v. 
Sun  Ins.  Offices.  nO  Wis.  175,  Cm  Am.  St.  Rep.  4.^;  Reimers  v.  Seatco 
Mfg.  Co.,  37  U.  S.  App.  426;  Central  T.  Co.  v.  Chattanooga  etc.  R. 
Co.,  68  Fed.  Rep.  6S5;  Reimers  v.  Seatco  INIfg.  Co.,  70  Fed.  Rep.  573. 

8T  Railroad  v.  Baruhill,  91  Tenn.  394,  30  Am.  St.  Rep.  889. 


§  16-2  PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.   793 

§  162.  General  Character  of  Debts  Subject  to.— Gar- 
nishment, whether  made  under  an  attachment  or  un- 
der an  execution,  is  a  legal,  and  not  an  equitable, 
proceeding.  The  court  can  take  no  notice  of  debts  due 
by  the  garnishee  to  the  defendant,  unless  these  debts 
could  have  been  enforced  by  the  defendant  against  the 
irarnishee  in  an  action  at  law.  Whenever  statutes 
have  authorized  the  garnishment  of  debts,  they  have 
uniformly  been  limited  in  their  application  to  legal 
debts.^*  In  other  words,  a  debt  cannot  be  garnished 
unless  it  is  one  upon  which,  when  due,  an  action  at 
law  can  be  sustained  by  the  defendant  in  execution 
against  the  person  garnished.^^  On  the  other  hand,  if 
the  debt  sought  to  be  garnished  is  one  which  may  be 
enforced  for  his  own  benefit  by  an  action  at  law 
brought  by  the  defendant  in  execution  against  the  gar- 
nishee, then  it  is  subject  to  garnishment,  irrespective 
of  its  character  or  of  the  peculiar  circumstances  under 
which  it  arose.^**  A  judgment  creditor  may  be  a  debtor 
of  the  defendant  in  execution  and  entitled  to  main- 
tain an  action  at  law  against  him  for  the  amount  of  the 
debt.     It  has,  nevertheless,  been  insisted  that  a  judg- 

88  Harrell  v.  Whitman,  19  Ala.  135;  Roby  v.  Labuzan,  21  Ala.  60, 
no  Am.  Dee.  237;  Godden  v.  Pierson.  42  Ala.  370;  Grain  v.  Aldrich, 
38  Cal.  520;  Hoyt  v.  Swift,  13  Vt.  129,  37  Am.  Dec.  586;  May  v. 
P>akcr,  15  111.  89;  Lowry  v.  Wright,  15  111.  95;  Patton  v.  Smith,  7 
Ired.  438;  Gillis  v.  McKay,  4  Dev.  172. 

89  Henry  v.  Murphy,  54  Ala.  240;  Cunningham  v.  Balier,  104  Ala. 
100,  53  Am.  St.  Rep.  27;  Farwell  v.  Chambers,  02  Mich.  316;  Edney 
V.  Willis,  23  Neb.  56. 

00  Woolridge  v.  Holmes,  78  Ala.  50S;  Martin  v.  Copeland,  77  Ga. 
374;  Fogelman  v.  Shively,  4  Ind.  App.  197,  51  Am.  St.  Rep.  213;  Lake 
V.  Minnesota  M.  R.  Assn.,  01  Minn.  90,  52  Am.  St.  Rep.  538;  Root  v. 
Davis,  51  Oh.  St.  29;  Bremer  v.  Mohn,  169  Pa.  St.  93;  Atwood  v. 
Dumas,  149  Mass.  167;  Proctor  v.  Lane,  02  N.  H.  457;  Burger  v. 
Burger,  135  Pa.  St.  499;  Dickinson  v.  Dickinson,  59  Vt.  678;  Green 
V.  Marshall,  72  Wis.  048;  Birmingham  N.  B.  v.  Mayer,  104  Ala.  634; 
Keiser  v.  Shaw  (Ky.),  46  S.  W.  524. 


799       TEILSUNAL  PKOrERTY  SUBJECT  TO  GAUNl.silMENT.     §  lti'2 

iiiciit  creditor  caunot  guruisli  a  debt  due  from  himself 
to  tlie  defendant  on  tlie  ground  tliat  garnishment  is  an 
adversary  proceeding,  to  be  made  effective,  if  necessary, 
by  an  action  brought  by  the  judgment  creditor  against 
the  garnished  creditor  of  the  defendant,  and  that  the 
plaintiff  cannot  bring  an  action  against  himself  to  en- 
force his  garnishment  of  himself,"^  although  the  debt 
may  be  owing  from  him  in  a  representative  capacity, 
for  instance,  as  an  administrator  or  executor  from 
whom  the  defendant  in  execution  was  entitled,  to  re- 
ceive the  payment  of  a  debt.**^  These  technical  objec- 
tions are  difficult  to  answer,  but,  without  answering, 
they  have,  in  several  of  the  states,  been  overruled.^^ 

Of  course,  there  may  be  instances  in  which  the  de- 
fendant in  execution,  though  able  to  maintain  an  ac- 
tion at  law  on  a  contract,  is  not  subject  to  garnish- 
ment, because  he  has  not  the  beneficial  ownership,  as 
where  money  is  deposited  or  a  contract  made  in  his 
name  while  he  is  acting  as  an  agent  or  trustee  for  an- 
other, in  which  event  the  real  party  in  interest  cannot 
be  prejudiced  by  the  garnishment  of  his  agent  or  trus- 
tee.*** 

While  it  is  possible  for  the  legislature  to  authorize 
the  garnishment  of  the  interest  of  a  cestui  que  trust 
in  a  debt  or  contract,  the  intention  to  accomplish  this 
object  must  be  clearly  expressed.     Otherwise  the  pre- 

91  Beech  v.  Fairbanks,  52  Conn.  1G7;  Belknap  v.  Gibbens,  13  Met 
471;  Blaisdell  v.  Ladd,  14  N.  H.  129;  Knight  v.  Clyde,  12  R.  I.  119. 

82  Hoag  V.  Hoag,  55  N.  H.  172. 

93  Grayson  v.  Veechie,  12  Mart.  (La.)  688,  13  Am.  Dec.  SS4;  Norton 
V.  Norton,  43  Oh.  St.  509;  Boyd  v.  Baylies,  4  Humph.  3SG;  Lyman 
V.  Wood,  42  Vt.  113. 

9*  Hair  V.  Northwestern  N.  B.,  50  111.  App.  211;  Hodson  v.  Mc- 
Connell,  12  111.  170;  Des  Moines  C.  M.  Co.  v.  Cooper,  93  Iowa,  654; 
Granite  N.  B.  v.  Neal.  71  Me.  125;  Palmer  v.  Noyes.  45  N.  H.  174; 
Marx  V.  Parker,  9  Wash.  473,  43  Am.  St.  Rep.  849. 


§  162    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        SOO 

suiiiption  is  that  tlie  credits  or  debts,  the  garnishment 
of  which  is  authorized,  include  only  obligations  en- 
forceable  at  law. 

ITence,  if  a  judgment  is  entered  in  favor  of  A,  for 
the  use  of  B,  it  cannot  be  garnished  by  the  creditors^ 
of  the  latter.  "While  our  statute  in  regard  to  garnish- 
ment is  comprehensive  in  its  provisions,  we  do  not 
think  equitable  claims  can  be  subjected  to  the  process. 
The  terms  employed  are  'indebted,'  or  'hath  any  effects 
or  estate'  in  his  charge,  enumerating  'lands,  tenements^ 
goods,  chattels,  moneys,  choses  in  action,  credits  and 
effects.'  The  'effects  or  estate,'  spoken  of  in  the  charge 
or  custody  of  the  garnishee,  must  belong  to  the  defend- 
ant in  attachment,  or  judgment  debtor,  and  the  choses 
in  action  or  credits  must  be  due  or  owing  to  him,  and 
evidently  must  be  of  a  legal  and  not  equitable,  char- 
acter." ^^  If  moneys  are  in  the  hands  of  a  trustee  or 
are  due  from  him  to  the  beneficiary  of  the  trust,  and 
are  sought  to  be  garnished  under  execution  against  the 
latter,  their  liability  to  such  garnishment  must  be  de- 
termined by  considering  whether,  in  the  state  in  which 
the  question  arises,  the  rights  of  the  beneficiary  are  so 
far  perfect  that  he  can  maintain  an  action  against  the 
trustee  on  the  refusal  of  the  latter  to  pay  the  demand 
sought  to  be  garnished.  If  so,  the  garnishment  must 
be  sustained.^"  If,  on  the  contrary,  there  must  first 
be  some  settlement  of  the  trustee's  accounts  or  some 
proceeding  must  be  prosecuted  and  determined  in  some 
court  of  equity  before  the  beneficiary  has  an  absolute 

95  Webster  v.  Steele,  75  HI.  544;  Notter  v.  Board  of  Trade,  12  111. 
App.  607;  Perry  v.  Barnard.  7  R.  I.  15. 

98  Lawrence  v.  Security  Co.,  56  Conn.  423;  Estabrook  v.  Earlc,  97 
Mass.  302. 


801        PERSONAL  PROPERTY  SUBJECT  TO  (JAliMSJlMENT.     §  1G2 

right  to  the  fund  in  question,  it  cannot  be  garnished."'' 
So,  though  the  garnishee  and  the  defendant  in  execu- 
tion do  not  occupy  the  relation  of  trustee  and  bene- 
ficiar\-,  yet,  if  the  hitter  can  only  enforce  his  rights  by 
a  suit  in  equity,  his  claim  is  not  subject  to  garnish- 
ment."® 

An  assignment  having  been  made  to  trustees  for 
the  benefit  of  creditors,  in  trust,  to  convert  the  prop- 
erty into  money,  and,  after  paying  the  expenses  of  the 
trust,  to  distribute  the  remaining  proceeds  pro  rata 
among  the  creditors  of  the  assignor,  an  attempt  by 
garnishment  was  made  to  reach  in  the  hands  of  the 
trustees  the  interest  of  one  of  the  creditors  of  the 
assignor  in  the  funds  which  would  ultimately  be  due 
him  as  his  pro  rata  of  such  funds.  The  trustees,  how- 
ever, had  not  completed  their  duties  by  disposing  of 
all  the  property.  It  was  therefore  held  that  the  right 
of  the  creditors  was  not  a  legal  right  or  interest  in 
the  funds  then  in  the  possession  of  the  trustees,  but 
at  most  the  right  to  compel  in  equity  the  execution  of 
the  trust;  and  hence,  that  it  was  not  subject  to  gar- 
nishment."* In  West  Virginia,  "where  the  garnishee 
owes  a  debt  to  the  defendant  in  execution  or  has  an 
estate  of  his  in  his  hands,  and  the  character  of  his  lia- 
bility is  such  that  it  might  be  enforced  in  a  common-law 
suit  by  an  action  of  debt,  detinue,  or  some  other  appro- 
priate personal  action,"  then  the  garnishee  may  be  pro- 
ceeded against  by  process  of  garnishment.     "But  when 

97  Groome  v.  Lewis.  23  Md.  137,  87  Am.  Dec.  5C3;  Hall  v.  Williams. 
120  Mass.  344;  Hinckley  v.  Williams.  1  Cush.  490,  48  Am.  Dec.  042; 
Mcllraine  v.  Lancaster,  42  Mo.  96;  Lackland  v.  Garescke,  56  Mo. 
267;  Ranfield  v.  Wiggin,  58  N.  H.  155;  Wliite's  Ex.  v.  White,  30  Vt. 
338;  Lackett  v.  Rimbaugli,  45  Fed.  Rop.  23. 

»8  Redondo  B.  Co.  v.  Brewer.  101  Cal.  322. 

•»  Mass.  Nat.  Bank  v.  Bullock,  120  Mass.  SO. 
Vol.  l.-^i 


§  162      PERSONAL  TROPERTY  SUBJECT  TO  GARNISHMENT.      802 

the  liability  of  the  garnishee  is  such  that  it  can  only 
be  enforced  in  a  court  of  eciuity,  the  garnishee  process 
is  entirely  unsuited  to  enforce  it";  and  the  judgment 
creditor  is  by  statute  authorized  to  bring  suit  in  equity 
in  the  name  of  the  sheriff. ^^^  The  rule  subjecting  none 
but  legal  debts  to  garnisliment  is  applicable  in  states 
where  law  and  equity  jurisdictions  are  blended  in  prac- 
tice and  administered  by  the  same  courts.  "It  is  well 
settled  that  the  word  'debt/  as  used  in  the  law  of  gar- 
nishment, includes  only  legal  debts — causes  of  action 
upon  which  the  defendant,  under  the  common-law 
practice,  can  maintain  an  action  of  debt,  or  indebitatus 
assumpsit,  and  not  mere  equity  claims."  ^^^ 

It  has  been  held  where  societies  are  formed  for  chari- 
table purposes  and  obligate  themselves  to  pay  their 
members  certain  sums  weekly  or  at  other  stated 
periods,  when  they  are  disabled  by  sickness  from  pur- 
suing their  ordinary  avocations,  the  amounts  thus  due 
are  in  the  nature  of  charities,  and  as  such  not  subject 
to  garnishment.^^^  Decisions  of  this  character  surely 
promote  the  purposes  for  which  beneficial  associations 
are  organized,  but  they,  in  effect,  declare  an  exemp- 
tion from  execution  not  supported  by  the  statutes  of 
many  of  the  states.  These  statutes  may  expressly  or 
impliedly  create  exemptions  from  garnishment  of  ob- 
ligations of  this  nature.***'^  In  the  absence  of  statutes 
to  the  contrary,  we  incline  to  the  opinion  that  if  the 
obligation  existing  in  favor  of  a  beneficiary  of  such  an 

100  Swann  v.  Summers,  19  W.  Va.  125. 

101  Hassie  v.  G.  I.  W.  U.  C,  35  Cal.  385;  Cook  v.  Walthall,  20  Ala. 
334;  Lundie  v.  Bradford,  26  Ala.  512;  Self  v.  Kirkland,  24  Ala.  275; 
Nesbitt  V.  McClanahan,  30  Ala.  G8;  Victor  v.  II.  F.  Ins.  Co.,  33 
Iowa,  210. 

102  Wilder  v.  Clark,  11  N.  Y.  Supp.  G83. 

103  Schillinger  v.  Boes,  85  Ky.  357;  Saunders  v.  Robinson,  144 
Mass.  30G;  Gecr  v.  Hortou,  159  Mass.  259. 


^03      PERSONAL  PROrERTY  SUBJECT  TO  ( ;  AUNISUMENT.     5  102i 

association  is  one  which  he  may  assert  by  an  aciion  ai 
law  against  it,  then  it  must  be  subject  to  garnishment, 
like  other  legal  debts.^""* 

§  162  a.  Rights  Which  the  Judgment  Debtor  has  the 
Option  of  Enforcing  or  not  are  iu»t  subject  to  garnish- 
ment. This  rule  has  been  invoked  and  applied  where 
the  defendant  in  execution  had  paid  usurious  interest, 
which  the  judgment  creditor  in  effect  sought  to  recover 
by  garnishment.  The  defense  of  usury  is  generally 
regarded  as  a  personal  privilege,  and  the  payment  of 
usurious  interest  voluntarily  made  is  treated  as  a  valid 
appropriation  of  the  moneys  by  the  payee,  at  least 
until  the  payor  elects  to  disaffirm  the  payment,  and 
treat  the  usurious  interest  as  moneys  held  for  his  use 
and  benefit.  Until  the  payor  has  made  his  election  to 
treat  the  payment  as  void,  and  reclaim  the  moneys 
paid,  he  has  no  cause  of  action  against  the  payee.  The 
debtor  of  the  payor  cannot  compel  him  to  make  such 
election,  and  there  can  therefore  be  no  perfect  cause  of 
action  against  the  payee  to  be  a  proper  subject  for  gar- 
nishment.*^^ The  same  principles  lead  to  the  denial  of 
the  right  to  garnish  a  stockholder  in  a  corporation  who 
has  not  paid  in  full  the  amount  subscribed  by  him  to 
its  corporate  stock,  where  his  duty  to  complete  such 
payment  is  by  law  dependent  upon  an  assessment  or 
call  therefor  being  made  by  the  corporation.  No  cause 
of  action  exists  against  him  in  the  absence  of  such  call 
or  assessment,  and  garnishment  is  a  proceeding  which 

'io4Geiger  v.  McLin,   78  Ky.  232;   Bolt  v.   Koylioc,   30  Hun,   G19; 
Hankinson  v.  Page,  31  Fed.  Rep.  184. 

105  Estill  V.  Rodes,  1  B.  Mon.  31G;  Graham  v.  Moore.  7  B.  Moii. 
53;  Boardman  v.  Roe,  13  Mass.  104;  Barker  v.  Esty,  19  Vt.  131; 
Ransom  v.  Hays,  39  Mo.  445;  Siuglelon  v.  Pattillo,  78  Ga.  2G9. 


§  163     PERSONAL  PROrERTY  SUBJECT  TO  GARNISHMENT.        804 

can  neither  compel  the  requisite  action  by  the  corpora- 
tion nor  make  its  absence  imijiaterial.''^ 

In  the  cases  to  which  we  have  last  referred,  it  is  un- 
certain whether  any  cause  of  action  will  ever  exist 
against  the  garnishee.  There  may  also  be  an  uncer- 
tainty respecting  the  person  to  whom  payment  is  to 
be  made,  and,  while  such  uncertainty  continues,  there 
can  be  no  garnishment.  Thus,  if  a  person,  having  work 
done  or  materials  furnished,  stipulates  that  he  may 
first  pay  for  w^  ork  done  or  materials  furnished  by  a  per- 
son other  than  the  original  contractor,  the  former  can- 
not be  garnished  as  a  creditor  of  the  latter,  so  as  to 
cut  off  his  rights  to  make  payment  to  the  persons  or 
in  the  manner  stipulated.*^'' 

§  163.  Whether  Must  be  Payable  in  Money.— It  is  es- 
sential that  the  obligation  existing  against  the  gar- 
nishee in  favor  of  the  defendant  should  be  payable  in 
money.***^  Therefore,  a  demand  payable  in  "store  ac- 
counts," *""  or  "notes,"  -^^^  or  "saddlery,"  ***  or  "cast- 
ings and  iron,"  *'^  or  in  work  or  labor,-^*^  or  in 
board,-^**  or  "in  groceries  and  provisions  to  live  upon, 
as  called  for,"  ^^^  cannot  be  reached  by  garnishment. 

106  McKelvey  v.  Crockett,  18  Nev.  238;  Brown  v.  Uuion  Ins.  Co..  3 
La.  Ann.  177;  Bingham  v.  Rushing,  5  Ala.  405. 

107  Drake  v.  Harrison,  69  Wis.  90.  2  Am.  St.  Eep.  717, 

losw^eil  V.  Tyler,  43  Mo.  581;  McMinn  v.  Hall,  2  Over.  328;  Jen- 
nings V.  Summers,  7  How.  (Miss.)  453;  Bartlott  v.  Wood,  32  Vt.  372; 
Briggs  V.  Beach,  18  Vt.  115. 

100  Smith  V.  Chapman,  6  Port.  365;  Deaver  v.  Keith,  5  Ired.  374. 

110  Mims  V.  Parker,  1  Ala.  421;  Willard  v.  Butler,  14  Pick.  550. 

111  Blair  v.  Rhodes,  5  Ala.  648. 

112  Nesbitt  V.  Ware,  30  Ala.  68. 

113  Wrigley  v.  Geyer,  4  Mass.  101;  contra,  Louderman  v.  Wilson. 
2  Har.  &  J.  379. 

ii4Aldrich  v.  Brooks,  5  Fost.  241;  Peebles  v.  Meeds,  96  Pa.  St. 
150. 
115  Smith  V.  Davis,  1  Wis.  447,  00  Am.  Dec.  390. 


805        PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  163 

In  all  these  cases  it  is  obvious  that  the  court  canuot 
compel  the  garuishee  to  pay  a  certain  sum  of  money 
into  court,  lor  that  would  be  to  compel  him  to  change 
a  contract  for  the  delivery  of  specific  property  or  the 
jjerformance  of  specified  services  into  a  contract  to  pay 
money;  nor  can  the  court  enter  a  judgment  payable  in 
services  or  in  property  other  than  money.  In  response 
to  a  garnishment,  the  garnishee  answered  that  he  had 
l)urchased  of  the  judgment  debtor  a  tract  of  land,  and 
had  given  him  four  several  written  contracts  to  make 
four  annual  payments  of  four  bales  of  lint  cotton,  each 
weighing  five  hundred  pounds.  In  discharging  the 
garnishee,  the  court  said:  "Garnishment  is  a  proceed- 
ing of  purely  statutory  creation  unknown  to  the  com- 
mon law,  and,  while  we  are  inclined  to  construe  it 
favorably  as  highly  remedial  and  beneficial,  we  have 
no  power  to  originate  machinery  or  process  by  which 
to  adapt  it  to  conditions  which  its  statutory  provisions 
are  not  broad  enough  to  cover.  The  court  having 
power  only  to  render  an  unconditional  money  judg- 
ment against  the  garnishee,  or  to  condemn  personal 
chattels  in  his  hands,  it  early  became  a  question  what 
description  of  debt  or  liability  would  authorize  a  per- 
sonal money  judgment  against  the' garnishee.  It  was 
settled  that  only  such  debts  as  would  maintain  debt 
or  indebitatus  assumpsit,  if  sued  on  by  the  defendant, 
could  be  the  subject  of  such  condemnation  and  per- 
sonal judgment."  ^^" 

Where  a  party  owing  a  debt  has  the  option  to  pay 
it  in  specific  articles  rather  than  in  money,  this  option 
continues  until  a  demand  for  payment  has  been  made, 
without  resulting  in  any  compliance  therewith. 
Hence,  before  such  demand,  the  obligatiim  canuot  be 

118  Jones  V.  Crews,  64  Ala.  371. 


§  1G3     PERSONAL  PROrERTY  SUBJECT  TO  GARNISHMENT.        805 

garnished,  though,  if  demand  of  performance  had  been 
made  and  refused,  the  obligation  would  have  become 
due  in  money,  and  an  action  of  assumjisit  might  have 
been  sustained  thereon/^''  If  the  sum  due  or  to  become 
due  from  the  garnishee  may  be  paid  by  him  in  his  nego- 
tiable promissory  notes,  he  cannot  be  held,  because  the 
creditor  has  no  power  ''to  interfere  with  this  contract, 
and  to  compel  the  other  party  to  pay  it  in  money,  in- 
stead of  giving  the  note."  ^^* 

Where,  however,  the  proceeding  by,  garnishment  or 
trustee  process  can  reach  not  merely  debts  but  also 
effects  of  the  defendant,  it  may  be'  that  the  garnishee 
can  be  compelled  to  surrender  any  specific  article  to 
which  the  defendant  is  entitled  from  him.^^'^  In  Iowa, 
where  a  garnishee  had  given  his  note  for  five  hundred 
dollars,  payable  "in  merchandise  or  trade  at  his  store, 
as  the  same  might  be  demanded,-'  it  was  said  that  a 
judgment  should'have  been  entered  against  him  for  the 
amount  of  the  note,  "to  be  discharged  in  goods  or  mer- 
chandise at  a  fair  value,  to  be  placed  at  the  disposal  of 
the  sheriff."  ^^ 

The  statute  of  Massachusetts  provides  for  trustee 
process  against  persons  who  hold  goods  or  chattels 
other  than  money,  and  which  they  are  bound  to  deliver 
to  the  defendant  in  execution,  and  that  under  such 
process  they  may  be  required  to  deliver  so  much  of  such 
property  as  may  be  necessary  to  the  officer  holding  the 
execution,  who  may  sell  the  same  and  apply  the  pro- 
ceeds in  the  same  manner  as  if  such  property  had  been 

117  Weil  V.  Tyler.  38  Mo.  545,  90  Am.  Doc.  441. 

118  Fuller  V.  0'P»rien,  121  Mass.  422. 

110  Comstock  V.  Farnum,  2  Mass.  0(3;  Clark  v.  Kin?,  2  Mas??.  .'524. 

120  Stadler  v.  Parmlee,  14  Iowa.  175.  For  form  of  jndsmeut  against 
garnishee  when  he  owes  a  debt  payable  in  specified  bonds,  see  Kin;^ 
V.  Hyatt,  41  Pa.  St.  229. 


807      PKllSONAL  PROI'EUTY  .SUB-IHCT  TO  (;A1:NI>11MI:NT.     §  103a 

seized  and  sold  uuder  exeeulioii.  This  statute  is  not, 
however,  applicable  when  the  contract,  though  made 
by  a  person  within  the  state,  is  for  the  delivery  of  goods 
elsewhere.  ^'^ 

§  163  a.  Property  in  the  Custody  of  a  Common  Car- 
rier.— AVhere  the  statutes  of  a  state  authorize  the  gar- 
nishment of  tangible  property  in  the  possession  of  a 
bailee  by  the  service  of  a  writ  on  him,  with  notice  that 
the  interest  of  the  defendant  in  execution  is  attached 
thereunder,  we  see  no  reason  for  holding  that  such 
statutes  do  not  apply  to  persons  and  corporations  ex- 
ercising the  functions  of  common  carriers,  though, 
doubtless,  the  peculiar  character  of  these  functions 
may  often  excuse  the  carrier  or  exempt  him  from  lia- 
bility for  the  subsequent  delivery  of  the  property  as 
required  by  the  contract  previously  entered  into  for 
its  transportation.^^-  If  the  transportation  has  been 
completed,  and  the  property  is  in  the  hands  of  the  car- 
rier in  its  capacity  of  warehouseman,  it  may  be  gar- 
nished.^-^ We  know  of  no  reason  why  it  may  not  be 
equally  liable  to  garnishment  before  the  transit  has 
begun.  ^-"*  provided  it  be  clear  that  the  defendant  in 
execution  has  an  interest,  and  that  the  carrier  may 
respect  the  garnishment  without  exposing  itself  to  lia- 
bility under  bills  of  lading  issued  before  the  service  of 
the  writ.  It  is  notorious  that,  in  the  usual  course  of 
business,  bills  of  lading  or  shipping  receipts  issued  by 
carriers  are  subject  to  transfer,  and  are  often  trans- 

121  Clark  V.  Brewor.  G  Gray,  320. 

122  Miclii.can  etc.  Ity.  v.  Chicago  etc.  Uy.  Co..  1  111.  App.  .399:  Adams 
V.  Scott.  104  Mass.  1G4;  Bates  v.  Cbicajro  etc.  Co.,  00  Wi.s.  206.  50 
Am.  Rep.  3G9. 

123  Cooley  V.  Minnesota  T.  Co..  ."3  Minn.  327.  39  Am.  St.  Rep.  609. 

124  Adams  v.  Scott,  104  Mass.  164;  Lauda  v.  Hoick,  129  Mo.  663.  50 
Am.  St.  Rep.  459. 


§  \6?.a    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.      803 

feiTod,  and  fiirtliermoro,  that  they  do  not  always  cor- 
rectlv  represent  the  true  ownership  of  the  property 
subject  thereto,  and  that,  in  the  vast  majority  of  cases, 
it  is  often  difficult,  and  sometimes  impossible,  for  the 
carrier  to  know  to  whom  «2,oods  in  its  possession  be- 
long, and  we  believe  no  liability  can  be  imposed  against 
a  carrier  by  garnishment  while  its  bill  of  lading  is  out- 
standing, and  it,  by  the  transfer  thereof,  may  become 
liable  to  deliver  the  property  to  an  assignee  who  is  not 
the  defendant  in  execution.^-*"^  If  the  property  sought 
to  be  garnished  is  not  within  the  state  when  the  gar- 
nishment is  attempted,  it  must  be  entirely  ineffective, 
though  the  property  is  subsequently  brought  within 
the  state  in  pursuance  of  a  contract  for  its  transporta- 
tion entered  into  before  the  service  of  the  writ/^* 
Where  the  transit  has  begun,  it  becouK^s  extremely  dif- 
ficult for  a  carrier  to  ascertain  whether  it  has  in  its  pos- 
session goods  sought  to  be  garnished,  and  the  perform- 
ance of  its  duties  to  the  public  must  be  very  seriously 
impaired  if  it  is  required  then  to  make  an  examina- 
tion for  the  purpose  of  suspending  the  transit  of  the 
goods  garnished,  or  to  determine  whether  it  must,  at 
the  end  of  the  transit,  refuse  to  deliver  them  and  hold 
them  subordinate  to  the  rights  of  the  garnishing  credi- 
tor. Our  examination  has  not  disclosed  to  us  any  case 
affirming  the  right  to  garnish  goods  in  the  possession 
of  a  carrier  during  their  actual  transit,  but  several  *-'' 
in  which  the  right  has  been  denied.     It  has,  further- 

125  Walker  v.  Detroit  etc.  R.  Co.,  49  Midi.  44G. 

126  Sutlierland  v.  Second  N.  B.,  78  Ky.  250;  Montrose  P.  Co.  v. 
Manufacturing  Co.,  76  Iowa,  172,  14  Am.  St.  Rep.  213;  W'estern  R.  R. 
Co.  V.  Tliornton,  60  Ga.  300. 

127  Illinois  C.  R.  R.  v.  Cobb,  48  III.  402;  Bates  v.  Chicajro  etc.  Co., 
60  Wis.  296,  50  Am.  Rep.  369:  Western  R.  R.  Co.  v.  Thornton,  60 
Ga.  300. 


*09       PERSONAL  PROPERTY  SUBJECT  TO  (JARXISHMEXT.     §  1G4 

nioi'o,  biM'ii  Ijcid  that  the  transit  slioiihl  be  regarded  as 
roinincnccd  when  the  property  sought  to  Ix'  "garnished 
is  in  a  ciir  forming  a  part  of  a  i'ejj;ui;ir  tiain,  operated 
in  transi)or(in«^  freijiiht,  already  made  iij*  ;iii(l  standing 
upon  the  track  ready  to  start  for  its  destination,  and 
that  the  carrier  is  justified  in  completing  this  transit 
regardless  of  the  garnishment.  This  decision,  however, 
was  partially  founded  ui»on  a  statute  of  the  state  de- 
idaring  that  the  garnishee  should  not  be  compelled  to 
<leliver  any  specific  articles  at  any  other  time  or  place 
than  as  stipulated  in  the  contract  between  him  and  the 
defendant,  it  appearing  that  in  the  case  before  the 
court  the  contract  with  the  carrier  provided  for  the 
delivery  of  the  property  at  a  point  beyond  the  state, 
and  that  it  was  in  the  car  ready  to  be  transported  in 
pursuance  of  such  contract.  The  remedy  of  the  judg- 
ment creditor,  it  was  said  in  such  case,  if  he  desired  to 
arrest  the  i)roperty  in  the  state,  was  to  have  taken  ac- 
tual possession  of  it  under  his  writ,^'"^ 

§  164.  Contingent  Debts.— Debts  which  are  due  con- 
tingently, and  which,  tlierefore,  may  never  become  due, 
are  not  subject  to  garnishment.^-^     In  Vermont,  a  note 

128  Stevenot  v.  Koch,  Gl  Minn.  104. 

129  McConnicli  v.  Kelioe,  7  N.  Y.  Leg.  01)s.  1S4;  Ilavon  v.  Went- 
wortli,  2  N.  H.  0.3;  Burlce  v.  Wliitcomb,  13  Vt.  421;  Tucker  v.  Clisby. 
12  I'ick.  22;  Roberts  v.  Driukhard,  3  Met.  (Ky.)  309;  Worn  worth  v. 
Whittemore.  1  Mass.  471;  Tabor  v.  Nye.  12  Pick.  lOo;  Russell  v. 
riin£:an,  33  Miss.  53.j;  Harris  v.  Aiken.  3  Pick.  1:  Sayward  v.  Drew. 
0  Me.  263;  Frothingham  v.  Haley.  3  Mass.  68;  Kettle  v.  Harvey,  21 
Vt.  301;  Bishop  v.  Young,  17  Wis.  46;  Bates  v.  N.  O.  J.  &  G.  X. 
R.  R.  Co.,  4  Abb.  Pr.  72;  13  How.  Pr.  516:  Baltimore  &  O.  R.  R. 
<^o.  V.  Gallahue,  14  Gratt.  563;  Davis  v.  Ham,  3  Mass.  33:  Wood  v. 
I*artridge,  11  >rass.  4SS:  Clement  v.  Clement.  19  X.  II.  460:  Slu^iror 
T.  Handy.  22  Pick.  417:  Maduel  v.  Mousseaux.  29  La.  Ann.  228:  Loh- 
mann  v.  Fnrwell,  95  Wis.  ISo.  t!(t  Am.  St.  Rep-  ^H:  Alexander  v. 
Pollock,  72  Ala.  137;  Jordan  v.  Jordan,  75  Me.  100;  Hanover  F.  C. 


§  1G4    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.       810 

was  given,  payable  when  the  payee  or  his  h(4rs  should 
clear  off  certain  encumbrances  then  existing  on  a 
specified  tract  of  land.  Trustee  process  was  served  on 
the  maker  of  the  note.  The  supreme  court,  in  deter- 
mining whether  he  could  be  charged  under  such  pro- 
cess, said:  ''The  note  set  forth  ii;  the  disclosure  is  pay- 
able on  a  condition.  This  was  a  condition  precedent, 
and  the  note  was  payable  upon  a  contingency.  It  was 
not  a  debt  in  presenti,  to  be  discharged  in  futuro.  Its 
becoming  a  debt  rested  in  contingency.  Until  the  con- 
dition was  performed,  no  indebtedness  existed;  and  no 
right  of  action  would  ever  accrue  on  the  note,  in  favor 
of  the  payee,  against  the  maker.  It  is  well  settled  in 
England,  under  the  process  of  foreign  attachment,  that 
no  lien  can  be  acquired  upon  a  debt  the  very  existence 
of  which  is  dependent  upon  a  contingency,  for  the  very 
satisfactory  reason  that  it  is  no  debt.  The  same  prin- 
ciple has  been  and  must  be  applied  to  the  trustee  pro- 
cess given  by  statute  in  many  of  the  states."  ^^^  Ta 
assist  a  better  understanding  of  the  rule,  we  shall  refer 
to  some  of  the  cases  in  which  its  application  has  been 
sought.  A  school-teacher  having  been  employed  to 
teach  for  the  winter  term,  under  a  contract  providing 
that  he  should  "recover  no  part  of  his  earnings  until 
the  term  of  school  should  have  been  fully  completed," 

Co.  V.  Connor,  20  111.  App.  207;  Linder  v.  Miirdy,  .S7  Kan.  152;  St. 
.Joseph  M.  Co.  V.  Miller,  69  Wis.  389;  Smith  v.  Gilbort,  71  Conn.  140; 
Smith  V.  Merchants  etc.  N.  B.  (Tex.  Civ.  App.),  40  S.  W.  1038. 

130  Burke  v.  Whitcomb,  13  Vt.  423.  For  cases  discussing  and  de- 
termining the  question  what  demands  are  contingent,  see  Cutter 
V.  Perkins,  47  Me.  5."7;  Williams  v.  Marston,  3  Pick.  6.';  Guild  v. 
Holbrook,  11  Pick.  101;  Rich  v.  Waters,  22  Pick.  .")f;3;  Woodard  v. 
Herbert,  24  Me.  358;  Ingalls  v.  Dennett,  6  Me.  79;  Tliorndike  v.  De 
Wolf,  6  Pick.  120;  Downer  v.  Curtis,  25  Vt.  6.50;  Dwinel  v.  Stone. 
30  Me.  384;  Wilson  v.  Wood,  34  Me.  123;  Willard  v.  Sheafe.  4  Mass. 
235;  Grant  v.  Shaw,  16  IMass.  341. 


811        rERSONAL  rKOIERTY  .^UliJE(  T  TO  GAliNISIIMENl.     §  1C4 

the  school  (listrict  was  ji;n rnisliod  as  liis  creditor  after 
ho  had  taii;;ht  about  two  months,  but  before  the  term 
was  coui])h'ted,  and  the  court  determined  that  such 
garnishment  was  unavailing,  because  the  teacher 
might  never  complete  the  term,  and,  if  so,  he  would 
never  become  entitled  to  any  compensation.^"'^  In 
every  contract  by  one  person  to  render  service  to  an- 
other for  a  definite  period  of  time  and  providing  ex- 
pressly or  impliedly  for  payment  therefor  at  the  expira- 
tion of  such  time,  it  can  never  be  known  wliether  or 
not  the  employe?  will  be  entitled  to  compensation  until 
the  service  is  fully  performed.  Until  that  time  he 
cannot  maintain  any  action  against  his  employer, 
nor  can  the  latter  be  subjected  to  any  liability  by  rea- 
son of  garnishment,  though  subsequently  the  services 
should  be  performed  and  the  stipulated  wages  should 
become  due.*^-  So,  where  a  builder  had  entered  into 
a  written  contract  to  perform  certain  work  within  a 
time  designated  and  according  to  certain  plans  and 
specifications,  and  had  stipulated  to  pay  three  dollars 
for  each  day  the  job  should  remain  unfinished  after  the 
day  designated  for  its  completion,  it  was  held  that  a 
garnishment  before  the  completion  of  the  work  was  in- 
effectual, because  it  could  not  be  known  whether  the 
work  would  ever  be  completed,  nor,  if  completed,  what 
amount  must  be  deducted  from  the  contract  price  for 
delay  in  such  completion. ^"^  A  farm  was  sold,  the 
purchaser  agreeing  to  cultivate  the  land,  and  to  de- 
liver "to  the  grantee  stipulated  portious  of  the  crops 

131  Norton  v.  Soule,  75  Me.  385. 

132  standard  W.  Co.  v.  Lowery.  94  dn.  014:  Hnll  v.  Armour  P. 
Co..  102  Ga.  58G;  Potter  v.  Cain.  117  Mass.  •_':!S:  Kidy  v.  B.-rtrand, 
67  Mifh.  .1,32;  Foster  v.  Siugrer,  09  Wis.  392,  2  Am.  St.  Kep.  745; 
Central  I'.ank  v.  Ellis.  20  Ont.  App.  3G4. 

133  Hopsou  V.  Dinan,  48  Mich.  G12. 


§  \6i    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.       812 

raised  thereon"  for  several  years  thereafter.  Being 
sued  for  damages  for  not  delivering  crops  as  stipulated, 
he  urged  in  his  defense  that  he  had  been  garnished  by 
a  creditor  of  his  vendor.  The  garnishment  was  de- 
cided to  be  inoperative,  because  at  the  time  of  its  ser- 
vice the  debt  or  liability  sought  to  be  reached  de- 
pended on  a  contingency.^"^*  A  conductor  of  a  street 
railway  company  was  entitled  to  $0.75  for  wages,  but 
he  owed  the  company  |4.5T  for  money  received, and  had 
in  his  possession  tickets  intrusted  to  him  to  sell  of  the 
value  of  |5.  By  his  contract  with  the  company  he  was 
required  to  account  to  it  for  these  tickets,  either  by 
paying  therefor  in  money  or  by  allowing  their  value  in 
reduction  of  the  amount  due  him  for  wages.  It  was 
held  that  the  company  could  not  be  held  as  garnishee, 
because  "whether  it  owed  anything  depended  upon  the 
contingency  or  condition  that  the  conductor  should  re- 
turn the  tickets  in  his  hands."  ^^^  If  a  contract  is 
made  whereby  the  promisor  agrees  to  pay  the  promisee 
certain  sums  at  stated  periods  during  the  life  of  the 
latter,  sums  which  have  become  due  absolutely  may  be 
garnished;  but  it  is  otherwise  as  to  sums  not  so  due, 
because  their  becoming  due  is  dependent  on  the  con- 
tingency of  the  continuance  of  the  life  of  the  prom- 
isee.^^^  If  the  amount  to  which  a  contractor  on  a  rail- 
road is  entitled  for  work  done  under  his  contract  is  or 
may  be  subject  to  forfeiture  for  divers  causes  specified 
in  such  contract,  it  cannot  be  garnished. ^^'^  Rents, 
unless  due  absolutely  and  unconditionally,  are  not  sub- 
ject to  garnishment,  because  their  coming  due  is  de- 

184  Reinhart  v.  Hardesty,  17  Nev.  141. 

135  Fellows  V.  Smith,  131  Mass.  3G.3. 

136  Sabin  v.  Cooper,  1,5  Gray,  .532;  Sayard  v.  Drew,  f?  Mo.  203. 

137  Baltimore  etc.  R.  R.  v.  Gallahue's  Adm'r,  1-i  Gratt.  503;  Strauss 
V.  R.  R.  Co.,  7  W.  Va.  368. 


813        rEK.SONAL  rUOrEKTY  SUBJECT  TO  GAKNl.sHMENT.     §  HA 

pendent  on  the  continuance  between  the  parties  of  the 
relation  of  lantUord  and  tenant  with  respect  to  the 
property  leased. ^^'^  A  mail  subcontractor  a<^reed  with 
the  principal  contractor  to  carry  the  mails  for  seventy- 
.  five  dollars  per  quarter,  provided  he  should  fulfill  all 
the  requirements,  conditions,  and  stipulations  con- 
tained in  a  contract  with  the  postmaster-general.  Pay- 
ment was  not  to  be  made  to  the  subcontractor  until 
the  principal  received  his  pay  from  the  government, 
nor  unless  evidence  of  the  service  should  be  received 
by  the  department.  The  moneys  to  become  due  the 
subcontractor  were  sought  to  be  garnished,  though 
they  had  not  been  paid  to  the  principal,  nor  had  any 
evidence  been  furnished  the  department  of  the  rendi- 
tion of  the  service.  The  court  said:  "It  is  contingent 
whether  the  required  evidence  of  service  will  ever  be 
furnished  the  department,  and,  if  not  furnished,  there 
is  nothing  due  the  trustee  or  the  defendant.  The 
claim  of  the  defendant  against  the  trustee  is  contin- 
gent. It  is  not  absolutely  due,  but  the  trustee  is  not 
to  be  charged  where  his  liability  rests  upon  a  contin- 
gency.-' '^^ 

The  general  principle  controlling  garnishment  is 
that,  at  the  service  of  the  writ,  some  liability  must  then 
exist  from  the  garnishee  to  the  defendant  in  execution, 
which,  when  due,  is  capable  of  being  asserted  by  some 
appropriate  action,  and  this  action  must  generally  be 
in  the  nature  of  assumpsit.  There  is  one  instance, 
however,  in  which  the  cause  of  action  need  not  be  per- 
fect at  the  time  of  the   garnishment,  and    in  which  it 

138  Mason  v.  Belfast  n.  Co..  89  Me.  381;  Thorp  v.  Trostou.  42  Mich. 
511;  contra,  Rowell  v.  Felker,  54  Yt.  520. 

139  Larral>pp  v.  "Walker.  71  Me.  441.     See,  also,  Early  v.  lledwood 
City,  57  Cai.  193. 


§  164    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.       8U 

cannot  be  known  absolutely  that  it  will  ever  become 
perfect.  The  defendant  may  be  required,  to  com^jlete 
his  cause  of  action,  to  make  some  formal  demand  of 
payment  upon  the  garnishee.  The  absence  of  this  de- 
mand, however,  and  the  possibility  that  it  may  never 
be  made,  do  not  render  the  liability  so  uncertain  or  con- 
tingent as  to  exempt  it  from  garnishment.^*^  This, 
we  believe,  to  be  the  only  exception  to  the  rule  that  a 
claim  or  demand  is  not  subject  to  garnishment  unless 
at  the  time  a  garnishment  is  attempted  the  claim  is 
free  from  all  conditions,  and  the  liability  of  the  gar- 
nishee must  inevitably  accrue.  Hence,  a  stockholder 
cannot  be  garnished  for  moneys  due  on  his  subscrip- 
tion if  no  call  has  been  made  therefor,"*  nor  can  the 
purchaser  of  personal  property  be  garnished  for  the 
purchase  price  when  the  property  purchased  has  not 
been  delivered  to  him,  and  for  that,  or  some  other  rea- 
son, the  sale  may  never  be  consummated  and  the  price 
never  become  due,**"  nor  will  partial  delivery  of 
things  purchased  create  an  obligation  subjecting  the 
purchaser  to  garnishment,  if  his  contract  is  such  that 
no  liability  can  accrue  against  him  until  complete  de- 
livery is  made.**^  If  a  sale  is  made  on  condition  that 
the  title  to  the  property  shall  not  pass  until  full  pay- 
ment is  made,  a  garnishment  of  the  purchaser  cannot 
defeat  this  condition.***  If  a  person  has  money  or 
property  in  his  .hands  ordinarily  subject  to  garnish- 
ment, but  he  is  entitled  to  retain  it  as  security  for  the 
performance  of  some  obligation,  or  until  he  has  been 

"0  Qulgrg  V.  Kittredge,  18  N.  H.  137;  Corey  v.  Powers,  18  Vt.  587. 
141  Teague  v.  Le  Grand,  85  Ala.  493.  7  Am.  St.  Rep.  64. 
i42Maier  v.  Freeman,  112  Cal.  8,  53  Am.   St.  Rep.   151;  Case  v. 
Dewey,  55  Mich,  116;  McKay  v.  Evans.  48  Mich.  603. 
143  Peterson  v.  Loring.  135  Mass.  397. 
i44Briggs  V.  McEwen,  77  la.  303. 


815        PERSONAL  PROPERTY  SUBJECT  TO  GAllNlSlLMKNT.     §  104 

iiuU'iimiried  from  some  liability,  or  uulil  auy  other  con- 
ditiou  precedent  can  be  peiformed,  no  garnishment  of 
him  can  be  effective  while  it  remains  nneertain  that 
any  liability  against  him  will  accrue.^  '•"'  On  the  other 
liand,  if  there  is  no  contingency  with  respect  to  the  lia- 
bility, the  debt,  it  is  said,  may  be  gamislied,  although 
some  further  act  must  be  done  to  fix  its  amount  or 
value,  provided  the  act  is  one  to  the  performance  of 
which  the  judgment  debtor  is  entitled.^^**  So,  if  the 
debt  is  absolute,  it  may  be  garnished,  although  the 
debtor  has  the  right  to  elect  the  mode  in  which  it  maybe 
paid,  as  where  he,  having  purchased  personal  property, 
has  the  right  either  to  return  the  property  or  to  pay  a 
stipulated  price  therefor  within  a  prescribed  period."'' 
A  debt  is  not  to  be  regarded  as  contingent  merely  be- 
<ause  the  mode  of  book-keeping  used  by  the  parties  is 
such  that  the  apparent  indebtedness  shown  by  such 
books  is  liable  to  be  changed  by  subsequent  investiga- 
tions, which  may  show  that  some  of  the  charges  made 

148  Goodman  v.  Boyd,  44  111.  App.  240;  Holker  v.  Hennessey,  141 
Mo.  527.  143  Mo.  80,  6  Am.  St.  Rep.  642;  MfQuavry  v.  Geyer.  57 
Mo.  App.  213;  Lackett  v.  Rumbaugh,  45  Fed.  Rep.  23. 

148  "Ware  v.  Goweu,  65  Me.  534.  In  this  case  the  defendant  had 
performed  work  in  the  construction  of  a  railroad,  under  a  contract 
which  entitled  him  to  payment  upon  the  estimate  and  certificate  of 
an  engineer  named  in  such  contract.  The  court  said:  ''Was  the  pay 
for  the  work  due  absolutely,  and  not  on  any  contingency,  at  the  time 
of  the  service  of  the  writ?"  We  think  by  the  true  construction  of 
the  contract  it  was.  The  work  had  been  performed.  There  waa 
nothing  further  for  the  contractor  to  do  to  be  entitled  to  pay.  It 
only  remained  for  the  engineer  to  measure  the  work  and  make  his 
o.stimate  in  order  to  fix  the  amount  to  be  paid.  If  the  engineer 
should  neglect  or  unreasonably  refuse  to  make  an  estimate  and  cer- 
tificate of  the  work,  it  would  not  deprive  the  contractor  of  his  righ« 
TO  pay,  but  he  might  bring  his  suit,  and  prove  the  amount  of  the 
work  in  some  other  way. 

i«  Smith  V.  Cahoon,  37  Me.  2S1. 


§  104     PERSONAL  PROPERTY   8U13JECT  TO  GARNISHMENT.        815 

did  Dot  in  fact  represent  existing  liabilities  against  the 
party  charged.**® 

In  Michigan,  the  statute  relating  to  garnishment 
now  provides  that  the  garnishee  shall  "be  liable  on 
any  contingent  right  or  claim  against  him  in  favor  of 
the  principal  defendant."  In  construing  this  statute^ 
the  supreme  court  of  that  state  excludes  all  contin- 
gencies "depending  on  the  will  and  ability  of  the  debtor 
to  earn  the  money."  Hence,  if  after  a  building  contract 
has  been  entered  into,  a  garnishment  is  served,  it  can 
reach  nothing  beyond  moneys  then  actually  due.  If 
a  different  construction  were  adopted,  a  garnishment 
could  be  served  as  soon  as  the  contract  was  made,  and 
the  builder  thereby  deprived  of  all  credit,  and  there- 
fore of  all  means  of  performing  his  contract.  No  ad- 
vances or  payments  could  be  made  on  the  work,  be- 
cause of  their  prior  appropriation  by  the  garnishment; 
and  both  parties  would  be  forced  to  abandon  the  con- 
tract. "No  doubt  the  emplo^^er  has  a  claim  in  such  a 
case  that  the  builder  shall  perform  his  contract;  but 
the  contingency  on  which  the  money  is  ])aYable  is  one 
dependent  on  the  subsequent  earning  of  the  money. 
It  is,  therefore,  a  contingency  depending  on  the  will 
and  ability  of  the  debtor  to  earn  money — a  will  which 
it  may  generally  be  assumed  will  not  be  exerted  where 
earning  is  not  to  be  followed  by  enjoyment.  If  there 
is  a  contingent  claim  here,  so  there  is  when  a  laborer 
hires  out  for  a  year,  to  be  paid  at  the  end  of  the  year; 
and  his  creditor  may  garnish  as  soon  as  the  hiring 
takes  place.  It  would  be  a  safe  assumption  that  very 
little  labor  would  be  done  under  the  hiring  after  the 
claim  was  garnished."  "®  The  demand,  though  con- 
ies Wajron  Co.  v.  Petorpon.  27  W.  "\'a.  339. 
1"  Webber  v.  Bolte,  51  Mich.  115. 


817     PERSONAL  PROrERTY  SUBJECT  TO  GARNISHMENT.     §  164a 

tiugeiit  when  the  garnishee  is  summoned,  may  be 
transformed  into  an  absolute,  unconditional  indebted- 
ness belore  the  time  for  the  entry  of  jud<;meut.  It  has 
sometimes  been  held  that  this  transformation  cannot 
render  him  chargeable,  because  his  liability  must  exist 
at  the  service  of  the  writ.^"'^"  In  other  cases  it  has  been 
adjudged  that  he  is  chargeable  for  all  debts  due  and 
certain  at  the  time  of  the  answer  or  disclosure,  though 
contingent  when  the  writ  was  served.*^^ 

§  164  a.  Claims  against  Insurance  Companies  for 
losses  against  which  they  have  issued  policies  form  a 
prominent  class  of  debts  not  subject  to  garnishment, 
because  subject  to  contingencies.  Indeed,  it  has  been 
held,  and,  so  far  as  we  know,  without  dissent,  that 
claims  for  loss  of  property  destroyed  by  fire  cannot, 
until  their  adjustment,  be  garnished,  because  they  are 
mere  claims  for  unliquidated  damages.*"'^  In  most 
cases  of  insurance  against  loss  by  fire,  the  insurer  re- 
serves the  right,  instead  of  paying  the  amount  of  such 
loss,  of  repairing  or  rebuilding  the  property  injured  or 
destroyed.  Until  he  has  made  his  election  not  to  re- 
build or  repair,  it  cannot  be  known  that  any  sum  of 
money  will  ever  become  due  from  him  under  his  policy, 
and  he  therefore  cannot  be  garni  shod.  ^•'^^  Where  a 
policy  of  life  insurance  has  issued,  the  insurer  cannot 
be  garnished  during  the  existence  of  the  life  of  the  as- 

150  W'illinms  v.  A.  &  K.  R.  R.  Co.,  36  Me.  201,  58  Am.  Dec.  742; 
Mace  V.  Heald.  3G  Me.  136. 

151  Franklin  F.  Iris.  Co.  v.  West,  8  Watts  &  S.  SoO. 

152  Bucklin  v.  Towell,  GO  N.  II.  119;  McKean  v.  Turner,  45  N.  H. 
203. 

i5:«Martz  V.  Detroit  Ins.  Co..  28  Mich.  201;  Godfrey  v.  Maoomber. 
128    Mass.  188;  Hurst    v.  Home  etc.    I.  Co..  81    Ala.  174:  Stone  v. 
Mutual  F.  I.  Co.,  74  Md.  570;  Oies  v.  Bechtner,  12  Minn.  IJTO;  Dowl- 
ing  V.  Lancashire  I.  Co.,  89  Wis.  9(3. 
Vol.  1.— 52 


§  164a    FERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.      bl8 

sured,  because  it  is  not  certain  when  nor  whether  any 
sum  will  ever  become  due  on  the  policy.*"'**     In  the  case 
of   the  insurance  of    property  against  loss  by  fire  or 
other   causes,  the   policy  generally  prescribes   sundry 
acts  to  be  performed  by  the  assured  after  the  loss  and 
before  he  becomes  entitled  to  payment  therefor,  such 
as  giving  due  notice,  making  proofs  of  the  amount  of 
the  loss,  furnishing  the  certificate  of  a  magistrate  that 
he  believes  the  loss  was  suffered  without  any  fraud  of 
the  assured,  et  cetera.     Until  these  various  conditions 
have  been  fulfilled,  the  liability  of  the  insurer  is  con- 
tingent, and  he  cannot  be  garnished.*''-'     In  Kentucky 
and  Texas  it  is  considered  that  if  an  insured  has  a 
right  to  perfect  his  cause  of  action  against  an  insurer 
by  giving  the  notice  or  making  the  proofs  of  loss  re- 
quired by  the  policy,  that  this  is  a  valuable  right  sub- 
ject to  garnishment,  and  that,  after  the  garnishment, 
the  judgment  creditors  may  take  the  measures  neces- 
sary to  complete  the  cause  of  action  against  the  in- 
surer.*''® 

There  can  be  no  doubt  that  if  the  right  of  the  insured 
to  recover  has  become  perfect,  so  that  nothing  further 
remains  to  be  done  to  entitle  him  to  maintain  an  ac- 
tion, his  demand  is  subject  to  garnishment,*^^  unless 
it  has  by  some  statute  been  expressly  or  impliedly  ex- 
empted from  execution,  or  the  fact  that  the  amount 
has  not  been  adjusted  or  agreed  upon  may  exclude  the 

154  Day  V.  N.  E.  L.  Ins.  Co.,  Ill  Pa.  St.  507,  56  Am.  Rep.  297. 

155  Gies  V.  Bechtner,  12  Minn.  279;  Katz  v.  Sorsby,  34  La.  Ann. 

588. 

156  Northwestern  A.  Co.  v.  Atkins,  3  Bush.  328.  96  Am.  Dec.  239; 

Phoenix  I.  Co.  v.  Willis,  70  Tex.  12,  8  Am.  St.  Rep.  566. 

i57nanover  F.  I.  Co.  v.  Connor,  20  111.  App.  297;  Chipman  v. 
Carroll,  53  Kan.  163;  Anoka  L.  Co.  v.  Fidelity  etc.  Co..  63  ISIinn. 
286;  Neufelder  v.  German-American  I.  Co.,  6  Wash.  336,  36  Am.  St. 
Rep.  166. 


819      PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  lC4a 

cluim  from  garnisbment,  on  tln'  ground  that  it  is  for 
imlicjuidated  damages.  Tliough  tlie  insured  has  com- 
plied with  all  the  conditions  precedent  and  the  insurer 
has  lost  his  option  to  satisfy  the  obligalion  against 
him  otherwise  than  by  the  payment  of  money,  and  is, 
therefore,  subject  to  an  action  for  its  enforcement,  the 
amount  thereof  may  be,  and  usually  is,  unadjusted  and 
uncertain.  It  has  been  thought  that  this  uncertainty 
as  to  amount  rendered  the  claim  one  for  liquidated 
<lamages,  and  hence  not  subject  to  garnishment  until 
they  were  liquidated  and  made  certain.'"''*  The  right 
of  the  assured  is  founded  upon  contract,  and  may  be 
asserted  by  an  action  at  law.  When  the  obligation  of 
the  insurer  is  to  indemnify  the  insured  for  a  loss  sus- 
tained by  the  destruction  of  property;  the  amount  of  re- 
rovery  is  no  more  uncertain  than  if  the  action  were  to 
recover  for  the  same  property  if  sold  under  an  agree- 
ment to  pay  its  value,  and  we  believe  the  rule  best  sus- 
tained by  reason,  as  well  as  authority,  is  that  the  claim 
against  the  assured  is  when  so  far  perfected  that  an 
action  at  law  can  be  sustained  thereon,  subject  to  gar- 
nishment.^'** 

If  the  property  against  the  loss  or  destruction  of 
which  insurance  was  etfected  was  itself  exempt  from 
^garnishment,  the  weight  of  authority  favors  the  propo- 
sition that,  upon  its  loss  or  destruction,  the  claim 
against  the  insurer  therefor  is  invested  with  the  ex- 
empt character  which  the  property  itself  had,   and, 

issKatK  V.  Sorpby.  34  La.  Ann.  f»8S;  ^IcKren  v.  Tm-ner,  45  N.  H. 
20?,:  Bucklin  v.  PoweH.  60  N.  H.  110. 

119  Knox  V.  Protection  I.  Co..  9  Conn.  4.m  2.=i  Am.  Dec.  33:  TT.an- 
over  F.  I.  Co.  v.  Connor.  20  111.  App.  207:  Crescent  I.  Co.  v.  Moore. 
63  Miss.  419;  Ritter  v.  Boston  I.  Co..  28  Mo.  App.  140:  Cirarci  F.  I. 
Co.  V.  Field.  48  Pa.  St.  129;  Phoenix  I.  Co.  v.  ^Hllis,  70  Tex.  12.  8 
Am.  St.  Rep.  560. 


§  165      PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.      820 

hence,  that  it  is  not  subject  to  garnishment.*^  If  the 
insurance  was  against  injuries  to  or  death  of  the  as- 
sured, or  if  he  belonged  to  a  beneficial  association 
which  agreed  to  pay  to  him  or  his  family  a  sum  speci- 
fied in  a  certain  contingency,  or  upon  his  death,  or 
upon  his  living  to  a  designated  age,  there  is  much  pro- 
priety in  the  legislature's  exempting  the  claim  from 
execution,  and  courts  have  often  been  pressed  to  sus- 
tain a  claim  of  exemption  in  the  absence  of  any  direct 
statutory  provision  upon  the  subject.  It  is  not  their 
province  to  make  or  to  imply  exemptions,  and  they 
must  deny  the  claim,  unless  some  statute  is  referred 
to  adequate  for  its  support.***^ 

§  165.  Debts  not  Due. — The  earlier  authorities  in- 
clined toward  the  view  that  a  garnishment  could  reacli 
only  those  debts  which  had  fallen  due,  and  which, 
therefore,  constituted  a  perfect  present  cause  of  action 
against  the  garnishee/**^  But  it  is  now  a  very  gen- 
erally recognized  rule  of  law  that  a  debt  existing  in 
favor  of  the  garnishee,  not  due  at  the  service  of  the 
writ,  but  which  is  sure  to  become  due  at  a  future 
period,  may  be  reached  both  under  execution  and  at- 
tachment.*^    This  rule  has  no  application  to  future 

160  Ellis  V.  Pratt  City,  111  Ala.  629.  HO  Am.  St.  Rop.  76;  Reynolil.s 
V.  Haines,  83  la.  342,  32  Am.  St.  Rep.  311;  Chase  v.  Swayne.  88  Tex. 
218,  53  Am.  St.  Rep.  742:  ante,  §  23."). 

161  Meyer  v.  Supreme  Lodge,  72  Mo.  App.  3-50;  Bolt  v.  Kehoe,  30 
Hun,  610;  Commercial  T.  A.  v.  Newlvind.  16  N.  Y.  Supp.  177. 

162  Dalton  V.  Selly,  Cro.  Eliz.  184;  Childress  v.  Dickins,  8  Yerii. 
113;  McMinn  v.  Hall,  2  Tenn.  328.  In  Rundle  v.  Scheetz,  2  Miles. 
330,  salary  not  due  was  held  exempt  from  attachment,  and  in  Cany 
V.  Day,  2  Miles,  412,  a  lilie  decision  was  made  in  reference  to  an 
annuity. 

163  Branch  Bank  v.  Poe,  1  Ala.  396;  Cottrell  v.  Varnum,  5  Ala. 
229;  Fulweiler  v.  Hughes,  17  Pa.  St.  440;  Dunncgan  v.  Byers,  17 
Ark.  492;  Glanton  v.  Griggs,  5  Ga.  424;  Peace  v.  Jones,  3  Murph. 


821        PERSONAL  PliOPERTY  SUBJECT  TO  GARN'ISH.MENT.     §  1G3 

contingent  liabilities;***  nor  to  any  case  where  the 
liability  of  the  defendant  to  the  garnishee  depends 
upon  the  performance  by  the  latter  of  some  condition 
precedent,  or  upon  his  full  compliance  with  the  terms 
of  some  unperformed  agreement  or  contract.*^'*  The 
debt  itself  must  be  in  existence  at  the  time  of  the  ser- 
vice of  the  writ,  free  from  any  contingency;  and  it  may 
80  exist  though  the  time  stipulated  for  its  payment  be 
very  remote.  Hence,  if  one  is  under  a  contract  to  serve 
another,  and  has  performed  the  greater  portion  of  his 
contract,  leaving  something  yet  to  be  done  before  he  is 
entitled  to  any  compensation,  as  there  is  nothing  due 
to  him  absolutely,  there  can  be  no  garnishment.*****  If, 
on  tiie  other  hand,  the  person  performing  services  is 
entitled  to  compensation,  free  from  any  contingency, 
though  the  time  for  payment  has  not  arrived,  there  is 
an  absolute  debt,  and  consequently  a  proper  subject  for 
garnishment.  If  some  services  for  which  one  is  en- 
titled to  compensation  have  been  performed,  and  other 
services  for  which  he  will  become  entitled  to  compensa- 
tion on  performance  remain  to  be  performed,  the  former 
are,  and  the  latter  are  not,  proper  subjects  of  garnish- 

250:  Steuart  v.  West.  1  Har.  &  J.  536;  Millor  v.  Scoville.  3r>  111.  App. 
38.':  Phenix  I.  Co.  v.  Willis,  70  Tex.  12.  8  Am.  St.  Rep.  500:  Willis 
V.  Heath.  75  Tex.  124.  16  Am.  St.  Rep.  870:  Marble  Falls  F.  Co.  v. 
Spitzler.  7  Tex.  Civ.  App.  82:  Pursell  v.  rappenhoimer.  11  Ind.  327; 
Sheriff  v.  Buckner.  1  Litt.  127:  Say  ward  v.  Drew.  6  Me.  203:  Wil- 
lard  V.  Sheafe.  4  Mass.  235:  Walker  v.  Gibb^:.  2  Dall.  3.11:  Fay  v. 
Smith.  25  Vt.  610:  Clapp  v.  Hancock  Bank,  1  Alien,  304:  Nichols  v. 
Schofield,  2  R.  I.  123. 

164  See  §  104. 

165  Robinson  v.  Hall.  3  Met.  301;  Daily  v.  .Tonlnn.  2  Ciish.  300; 
Wyman  v.  Ilichborn,  0  Cush.  264;  Baltimore  &  ().  R.  R.  v.  Gallahne. 
14  Cratt.  ~j(ui;  Baltimore  &  O.  R.  R.  v.  McCullonsh.  12  Gratt.  505; 
Ross  V.  McKinny,  2  Rawle.  227;  Kettle  v.  Harvey.  21  Vt.  301;  Rus- 
sell V.  Clinsan,  33  Miss.  5.35. 

i«G  Webber  v.  BoRo,  51  Mich.  113;  Thomas  v.  Gibbons,  61  Iowa, 
50. 


§  1(55  FERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.   822 

ment,  though  all  are  provided  for  in  the  same  con- 
tract.*"' 

Whether  the  liability  of  a  lessee  for  rents  to  ac- 
crue is  a  perfect  debt,  within  the  meaning  of  the 
statutes  respecting  garnishment,  is  a  doubtful  ques- 
tion. On  the  one  hand,  it  is  said  that  the  lessor  may 
convey  the  property  to  a  third  person,  or  the  lease  may 
be  surrendered,  or  the  lessee  may  be  ousted,  and,  upon 
the  happening  of  these  or  other  possible  contingencies, 
may  be  exonerated  from  any  further  liability  on  his 
lease,  and,  therefore,  that  any  attempted  garnishment 
must  prove  ineffective  under  the  rule  inhibiting  the 
garnishment  of  contingent  debts.*"*  On  the  other 
hand,  it  has  been  decided  that  rent  to  accrue  for  future 
occupation  may  be  garnished,  and  that  the  contingency 
of  a  suspension  or  destruction  of  the  lease  from  some 
cause  is  not  one  of  the  contingencies  relieving  the 
lessee  from  liability  as  garnishee.*^^  The  court  inti- 
mated that,  if  any  contingency  should  subsequently 
occur,  under  which  the  lessee  ought  no  longer  to  be 
held  answerable,  ''he  must  avail  himself  of  it,  in  such 
manner  as  the  law  will  permit";  but  what  "such  man- 
ner" shall  be  was  not  foreshadowed. 

If  a  contract  is  entered  into  with  a  municipal  cor- 
poration to  build  a  sewer,  to  be  completed  on  a  day 
named,  and  to  be  paid  for  a  certain  sum  per  lineal 
foot,  a  garnishment  at  any  time  prior  to  the  comple- 
tion of  the  work  is  not  permitted,  because  the  con- 
tract is  entire  and  not  apportionable,  and  prior  to  its 
complete  performance  there  is  no  existing  debt.*'^'* 
So,  under  a  contract  to  deliver  a  certain  quantity  of 

167  B.  &  M.  R.  R.  Co.  V.  Thompson,  .'^,1  Kan.  180,  47  Am.  Rep.  497. 

168  Vogel  V.  Preston,  42  'SUch.  511. 
160  P.owell  V.  Felker,  M   Vt.  .^)29. 
iToCoburn  v.  City  of  Hartford,  38  Conn.  290 


8-_'3       PERSONAL  PKOPEivTY  SUBJECT  TO  (i AP.NlSHMENT.     3    10; 

l()<;s  in  a  designated  boom  for  an  agreed  price  per 
thousand  feet,  there  is  no  debt,  and,  therefore,  no  sub- 
ject for  garnishment  until  the  h)gs  are  (hdivered  as 
agreed. *'^*  If  a  contract  of  sale  is  entered  into,  by 
the  terms  of  which  no  credit  is  to  be  given,  and  the 
delivery  and  payment  are  to  be  concurrent,  no  debt 
exists  from  the  jMircliaser  to  the  seller.  If,  in  such  a 
case,  "the  delivery  and  payment  were  to  be  simultane- 
ous, and  the  goo<ls  were  delivered  in  the  expectation 
that  the  price  would  be  immediately  paid,  the  refusal- 
to  make  payment  would  be  such  a  failure  on  the  part 
of  the  buyer  to  perform  the  contract  as  to  entitle  the 
seller  to  put  an  end  to  it  and  reclaim  the  goods."  Un- 
less the  seller  consents  to  give  credit,  or  to  treat  the 
sale  as  valid  and  subsisting,  notwithstanding  the  want 
of  payment,  there  is  no  debt  due  him  which  can  be 
garnished. ^'^^ 

Although  debts  not  due  may  be  subjected  to  garnish- 
ment, the  garnishee  will  not  be  compelled  to  make  pay- 
ment of  the  obligation  against  him  until  it  has  fully 
matured.  The  entry  of  the  judgment  against  him  will 
be  delayed  till  the  debt  becomes  due;  ^"  or,  if  such 
delay  be  not  made  in  entering  the  judgment,  execution 
thereon  will  be  stayed,  as  the  justice  of  the  case  may 
require.*'^^ 

§  165  a.  Debts  Subject  to  Setoff.— As  a  judgment 
creditor  cannot,  by  garnishment,  ordinarily  acquire 
any  rights  which  the  defendant  in  execution  had  not, 
and  must,  if  he  acquires  any  right  to  enforce  the  de- 
mand garnished,  exercise  it  subject  to  any  defense 
which  might  have  been  made  against  it  had  the  debt 

iTi  Whooler  v.  Day,  23  Mlnu.  7Ao. 

1T2  PiHil  V.  Reed,  r.2  N.  H.  13(5. 

1T3  Wilson   V.    All)ri.i.'lit.   2   <;.    Oroone.    12."i. 

174  Anderson  v.  "Wanzer,  5  How.  (Miss.)  587.  37  Am.  Deo.  170. 


§  165a    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.      824 

remained  the  property  of  the  defendant  in  execution, 
it  must  follow  that  a  garnishee  ma}'  assert  any  setoff 
or  counterclaim  which  he  might,  but  for  the  garnish- 
ment, have  asserted  against  such  defendant.  Ordi- 
narily a  setoff  or  counterclaim  cannot  be  asserted  by 
the  defendant  unless  it  was  due  at  the  commencement 
of  the  action,  but  there  are  exceptions  to  this  rule 
which  obtain  in  courts  of  equity,  and  they  continue  to 
be  available,  though  the  debt  has  been  garnished.  A 
bank,  in  answer  to  a  garnishment,  disclosed  that  it  was 
indebted  to  the  defendant,  but  that  it  had  certain  set- 
offs or  counterclaims  against  him  which  were  not  due, 
but  that  he  was  insolvent,  and  that  it  must  be  with- 
out remedy  if  obliged  to  pay  its  debt  to  him  without 
taking  into  consideration  its  claim  against  him,  though 
not  yet  due.  In  sustaining  the  right  of  the  bank  to 
set  off  its  demand  against  the  claim  garnished,  the 
court  said:  "As  we  understand  the  law  concerning  the 
condition  of  a  garnishee  in  attachment,  he  has  the 
same  rights  in  defending  himself  against  that  process 
at  the  time  of  its  service  upon  him  that  he  would  have 
had  against  the  debtor  in  the  suit  for  whose  property 
he  is  called  ujjon  to  account.  And,  while  it  may  be 
true  that  in  a  suit  brought  by  Israel  against  the  bank 
it  could  in  an  ordinary  action  at  law  only  make  plea 
of  setoff  of  so  much  of  Israel's  debt  to  the  bank  as 
was  then  due,  it  could,  by  filing  a  bill  in  chancery  in 
such  case,  alleging  Israel's  insolvency,  and  that,  if  it 
was  compelled  to  pay  its  own  debt  to  Israel,  the  debt 
whicli  Israel  owed  it,  but  which  was  not  due.  would 
be  lost,  be  relieved  by  a  proper  decree  in  equity;  and, 
as  a  garnishee  is  only  compelled  to  be  responsible  for 
that  which,  both  in  law  and  equity,  ought  to  have  gone 
to  pay  the  principal  defendant  in  the  main  suit,  he 
can  set  up  all  the  defenses  in  this  proceeding  which 


825       PERSONAL  PROPERTY  SUBJECT  TO  GARNISII.MKNT.     §  106 

lie  would  liavo,  if  sued  by  his  crcMlitor,  in  cillK.-r  ii  court 
of  law  or  a  court  of  equity/'''* 

§  166.    Debts  in  Suit  or  in  Judgment.— At  an  early 

day  it  was  detcniiined  in  the  slates  of  Massachu- 
setts'"" and  Now  Hampshire  '"'  that  a  d<'l>t(»i-  could  not 
be  oarnished  during  the  pen(len<y  of  an  action  against 
him  for  the  recovery  of  a  debt.  This  position  has  been 
abandoned  in  both  of  these  states;  ^''^  and  it  seems  now 
to  be  very  generally,  and  perhaps  universally,  conceded 
that  the  mere  pendency  of  a  suit  for  the  collection  of 
a  debt  Avill  not  place  it  beyond  the  reach  of  garnish- 
ment process.^'"*^  But  there  may  arrive  certain  stages 
of  the  suit  at  which  the  defendant  is  in  many  of  the 
states  no  longer  liable  to  garnishment.  The  general 
rule  u])on  this  subject  seems  to  be  this:  that  as  long 
as  the  proceedings  are  in  such  a  condition  that  the  de- 
fendant, by  a  plea  in  abatement  or  otherwise,  can 
bring  before  the  court  the  fact  that  the  debt  in  suit 
is  attached  by  a  creditor  of  the  plaintiff,  and  can  thus 
shield  himself  from  the  liability  to  make  payment  both 
to  the  plaintiff  and  to  the  plaintiff's  creditor,  so  long 
the  defendant  may  be  summoned  and  held  as  a  gar- 

175  United  States  v.  Vaughau,  3  Binnoy.  o94.  5  Am.  Doc.  37.");  Shat- 
tuck  V.  Smith,  10  Vt.  132;  Ex  parte  Stephens.  11  Ves.  24:  Drake  ou 
Attachment,  §§  528,  531;  Schuler  v.  Israel,  120  U.  S.  50G. 

176  Gridley  v.  Harraden,  14  Mass.  496. 
iTTBurnham  v.  Folsom.  5  N.  H.  oOG. 

178  Thorndikc  v.  De  Wolf,  6  Tick.  120;  Foster  v.  Dudley,  10  Fost. 
463. 

i79Ciab1)  V.  .Tones,  2  Miles.  330:  Smith  y.  Barker,  10  Me.  458:  Mc- 
Carty  v.  Emleu,  2  Dall.  277;  Sweeny  v.  Allen.  1  Pa.  St.  380;  Jones 
V.  N.  Y.  R.  R.  Co.,  1  Grant  Cas.  457;  Foster  v.  Jones.  15  Mass.  185; 
Locke  V.  Tippets.  7  Mass.  149;  Hitt  v.  Lacy,  3  Ala.  KU,  36  Am.  Dec. 
440:  ITnfF  v.  Mills,  7  Yerg.  42;  Lieber  v.  St.  Louis  etc.  Assn.,  36  Mo. 
3S2;  McDonald  v.  Carney.  8  Kan.  20:  Thrasher  v.  Buckinsham.  40 
]\Iiss.  67;  Foster  v.  Dudley.  30  N.  II.  463;  Smith  v.  Carroll,  17  K.  I. 
125;  Penniman  v.  Smith,  5  Lea,  130. 


§  1G6      rERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.      82ft 

iiishce/'**'  But  when  this  stage  has  been  passed,  the 
liability  of  the  debt  to  garnishment  is,  in  most  of  the 
states,  terminated.  Hence,  a  debt  in  snit  cannot  be 
attached  after  a  verdict,^*^^  nor  after  a  default,*^'  nor 
after  an  award  made  therefor  by  a  referee.**^^ 

It  may  happen  that  the  suit  is  pending  in  one  court, 
and  that  the  writ  under  which  the  garnishment  is 
sought  to  be  made  has  issued  from  another  court.  In 
such  a  case,  there  is  strong  reason  for  denying  the 
right  of  garnishment,  because  its  allowance  might  per- 
mit one  tribunal  to  interfere  with  the  proceedings  of 
another.^"^  This  is  particularly  the  case  where  the 
two  courts  act  under  and  by  virtue  of  entirely  distinct 
authorities.  Hence,  it  has  been  determined  that  a 
debt  in  suit  in  one  of  the  federal  courts  cannot  be  gar- 
nished under  a  writ  issuing  out  of  a  state  court,^^^  nor 
can  a  debt  in  suit  in  one  state  be  subsequently^  gar- 
nished in  another  state.^^** 

isowadsworth  v.  Clark,  14  Vt.  139;  Foster  v.  Dudley,  10  Fost. 
463;  Thorndike  v.  De  Wolf,  6  Pick.  120;  Trombly  v.  Clark,  13  Vt. 
118. 

181  Eunson  v.  Healy,  2  Mass.  32;  Thayer  v.  rrntt,  47  N.  H.  470. 

182  Howell  V.  Freeman,  3  Mass.  121;  Kidd  v.  Shepherd,  4  Mass. 
238;  McCaflfrey  v.  Moore,  18  Pick.  492. 

183  Holt  V.  Kirby,  39  Me.  1G4;  Strout  v.  Clements,  22  Me.  292; 
Caila  V.  Eljrood,  2  Dowl.  &  R.  193;  Coppell  v.  Smith,  4  Term  Bep. 
312;  McCaffrey  v.  Moore,  18  Pick.  492. 

li^i  Binjrham  v.  Smith,  .5  Ala.  0."1.  See  this  i)rinciple  urced  against 
the  garnishment  of  judgments  in  Young  v.  Young,  2  Hill  (S.  C). 
420,  and  in  P>urrell  v.  Letson.  2  Spears,  378.  In  :\Iic-higan,  a  debt 
upon  which  an  action  has  been  brought  before  one  justice  of  the 
peace  cannot  be  garnished  under  process  issued  by  another  justice. 
Custer  V.  White,  49  Mich.  202. 

185  Wallace  v.  McConnell,  13  Pet.  1.51;  Wood  v.  Lake,  13  Wis.  ^4; 
Greenwood  v.  Rector,  Hemp.  708;  Rosenstein  v.  Tarr,  51  Fed.  Rep. 
368;  contra,  Knebelkamp  v.  Fogg,  .55  111.  App.  .503. 

186  Whipple  V.  Bobbins,  97  Mass.  107;  American  Bank  v.  Rollins, 
99  Mass.  313. 


827        PERSONAL  PROPERTY  SUBJECT  TO  GAKNISH.MJJTT.     §  166 

Tln'  J,^•^•nisllnlont  of  dobts  is  authorized  iipou  tlic  the- 
ory that  the  garnishee  owes  something  to  tlie  defend- 
ant, whicli.  after  the  service  of  gnrnishincin,  niny  be 
lawfully  withheld  from  the  defendant,  and  ai)i»n)i)ri- 
ate<l  to  the  payment  of  the  defendant's  creditors.  But 
when  the  debt  has  merged  into  a  judgment,  the  de- 
fendant has  no  right  to  delay  its  payment;  nor  lias  he 
any  means,  aside  from  payment,  of  preventing  his  prop- 
erty from  being  taken  and  sold  under  execution  for 
the  satisfaction  of  the  judgment.  Therefore,  it  has 
been  held,  in  many  of  the  states,  that  a  debt  due  by 
judgment  cannot  be  reached  by  garnishment,^®'' 
thongh,  in  some  of  them,  it  must  be  conceded  that  the 
langnage  employed  in  authorizing  garnishment  was 
sufficiently  comprehensive  to  include  every  class  of 
indebtedness.  lOn  the  other  hand,  statutes  have  been 
enacted  in  some  of  the  states  specially  forbidding  the 
garnishment  of  a  judgment  of  a  court  of  record  under  a 
writ  issued  by  a  justice  of  the  peace. ^^^  In  other  states 
the  language  of  the  statues  is  so  broad  as  to  embrace 
debts  of  every  kind  and  nature;  and  in  these  states  it 
has  been  determined  that  a  judgment  debtor  may  be 
held  as  garnishee,'^^^  even  if  the  execution  has  been 

1S7  PerkUis  v.  Gray,  2  Mont.  1.5;  Despain  v.  Crow,  14  Or.  404; 
Black  V.  Black.  32  N.  J.  Eq.  75;  Burnhani  v.  Folsom,  5  N.  H.  oGC>; 
Sharp  V.  Clark.  2  Arafjs.  01:  Prcscott  v.  Parker.  4  Mass.  170;  Frank- 
lin V.  Ward,  3  Mason,  136;  Shinn  v.  Zinunorman.  3  Zab.  1-50.  Tir,  Am. 
Dec.  200;  Sir  .Tolm  Parrotfs  Case,  Cro.  Eliz.  <;.*•>;  Kerry  v.  Bower, 
Cro.  Eliz.  18C;  Esty  v.  Flanders.  Ifi  X.  H.  21S:  Clodfelter  t.  Cox. 
1  Sneed,  330,  GO  Am.  Dec.  157;  Trowl>rld,i.M<  v.  Moans.  .5  Ark.  1.35, 
39  Am.  Dec.  3G8;  Tnnstall  v.  Means,  .")  Ark.  7(io.  In  Massaclinsetts 
a  jnd.cment  may  now  be  reached  by  crarnishmont.  if  it  remains 
unpaid  for  one  year  after  its  entry.     Sabin  v.  Coopi>r,  1.5  Gray.  .532. 

i^^s  Sharpe  v.  Wharton.  So  Ala.  225. 

i»9  Jones  V.  N.  Y.  &  E.  R.  R.  Co.,  1  Grant  Cas.  4.57:  Skipper  v. 
Foster.  29  Ala.  330,  65  Am.  Dec.  405;  O'Brien  v.  Liddell.  10  Sniedes 
&  M.  371;  Minard  v.  Lawler,  26  111.  301;  Gray  v.  Henby,  1  Sujedea 


§  lOG       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     828 

levied  upon  his  property.*'**"  His  remedy,  in  siu-li  cir- 
cumstances, would,  no  doubt,  be  by  an  application  to 
the  court  in  which  the  judgment  was  rendered,  show- 
ing that  it  has  been  attaclied,  and  asking  for  a  stay 
of  proceedings  until  the  attachment  suit  can  be  set- 
tled. It  is  contrary  to  the  policy  of  the  legislation  in 
a  majority  of  the  states  to  permit  any  debtor  to  retain 
property  of  value  free  from  the  chiim  of  his  creditors, 
except  to  the  extent  indicated  by  their  exem])tion  laws, 
and  it  is  surely  anomalous  to  hold  that  a  debt  which 
has  been  reduced  to  judgment  and  thereby  made  cer- 
tain may  be  retained  by  the  judgment  creditor,  and  en- 
forced for  his  benefit,  however  pressing  and  meritori- 
ous are  the  demands  of  his  creditors.  It  is  true  that 
there  is  a  possibility  that  by  permitting  the  garnish- 
ment of  a  judgment  some  conflict  might  result  between 
the  court  in  which  it  was  rendered  and  that  from  which 
the  writ  was  issued  under  which  the  garnishment  was 
made.  This  conflict  is  a  contingency  too  remote  to  merit 
serious  consideration,  and  it  may  be  altogether  avoided 
by  conceding  the  right  to  garnishment  and  requiring 
the  garnishing  creditor  to  assert  his  remedy  under  the 
garnishment  by  the  aid  or  with  the  concurrence  of  the 
court  whose  judgment  is  garnished.  There  are  un- 
doubtedly courts  which  still  maintain  that  a  judgment 
of  one  court  cannot  be  garnished  under  a  writ  issued 

&  M.  598;  Belcher  v.  Grubb,  4  Harr.  (Del.)  461;  Halbert  v.  Stinson, 
6  Bkifkf.  308;  Cxasov  v.  Watson.  11  Conn.  1(')S;  Sweeney  v.  Allen,  1 
Pa.  St.  380;  Fithian  v.  N.  Y.  &  E.  R.  R.  Co.,  31  Ta.  St.  114;  Ocbiltree 
V.  M.  I.  &  N.  Ry.,  49  Iowa.  I'lO;  McBrule  v.  Fallou.  <m  Cal.  301; 
Luton  V.  Hoehn,  72  111.  81;  Keith  v.  Harris.  9  Kans.  380;  Blake  v. 
Adams,  04  N.  H.  80;  Lsabelle  v.  Le  Blanc  (N.  II.).  39  Atl.  430;  Trem- 
bly V.  Clark.  13  Vt.  118;  Jones  v.  St.  Onge,  07  Wis.  520. 
190  Belcher  v.  Grubb,  4  Harr.  (Del.)  461. 


829        PERSONAL  PKUrEUTY  .SUliJEcT  TO  GAKNISHMENT.     §  107 

from  auother.  rcrluips  tlicso  arc  in  the  majority. ^^* 
AVLcrc,  however,  the  statutes  jjurporting  to  authorize 
o-aruishment  use  general  terms  suflicient  to  embrace 
debts  evidenced  by  judgments,  we  see  no  reason  for 
denying  effect  to  such  statutes  or  for  restricting  the 
-•arnisliment  of  judgments  to  writs  issued  out  of  the 
courts  by  which  tliey  were  rendered.*"-  Unseemly 
conflicts  of  jurisdiction  would  not  necessarily  result 
from  sustaining  such  garnishment;  nor  need  they  re- 
sult at  all.  Especially  is  this  true  when  the  two  courts 
rei)resent  the  same  state  or  sovereignty,  and  any  action 
(nther  may  take  is  subject  to  the  revision  of  the  same 
appellate  tribunal. 

§  167.  Claims  for  Tort  or  for  Unliquidated  Damages.— 
The  fact  that  the  person  summoned  as  garnishee  is 
liable  to  the  defendant  in  an  action  of  tort  does  not 
render  him  chargeable  under  the  garnishment.*^^  If 
a  person  obtains  possession  of  goods  by  the  commis- 
sion of  a  trespass  he  cannot  be  charged  as  the  trus- 
tee of  the  person  against  whom  the  wrong  was  com- 
mitted.**'*^    The  rule  is  the  same  where  the  person  sum- 

191  ITamill  v.  Peck,  11  Colo.  App.  1;  Sievers  v.  Woodbum  S.  W. 
Co..  4.3  Mich.  275;  Noyes  v.  Fishev,  48  Mich.  273;  Perkins  v.  Guy. 
2  Mont.  15;  Scott  v.  Rohman,  43  Neb.  CIS,  47  Am.  St.  Rep.  7G7;  Shinn 
V.  Zimmorman,  23  N.  J.  L.  150,  55  Am.  Dec.  2G0;  American  Bank 
V.  Snow,  9  R.  I.  11.  98  Am.  Dec.  3(U;  Youns  v.  Young,  2  Hill  (S.  C.i. 
42G;  Henry  v.  Gold  P.  M.  Co.,  15  Fed.  Rep.  G49. 

i!>^  (Jaser  v.  Watson,  11  Conn.  108;  Beleber  v.  Grubb,  4  Harr.  (Del.) 
461;  Luton  v.  Hoebn,  72  111.  81;  Knebelkamp  v.  Fo^?.  ">  ']\.  App. 
563;  HaJbert  v.  Stinson,  6  Blackf.  399;  Osburu  v.  Cloud,  23  la.  104, 
92  Am.  Dec.  413;  Blake  v.  Adams,  64  N.  H.  87;  Fitbian  v.  Railroad 
Co.,  31  Pa.  St.  114;  Jones  v.  St.  Onge.  67  Wis.  520. 

193  Getcbell  v.  Cbase.  37  N.  H.  100;  Foster  v.  Dudley.  10  Fost.  464; 
Rundlet  v.  Jordan,  3  Greenl.  48;  Ten  Broeck  v.  Sloo.  13  How.  Pr. 
28;  2  Abb.  Pr.  234;  Davenport  v.  Ludlow,  4  How.  Pr.  337;  3  Code 
Rep.  66;  Hudson  v.  Plets,  11  Paige,  180;  3  N.  Y.  Leg.  Obs.  120;  Hill 
V.  Bowman.  35  Mich.  191;  Selheimer  v.  Elder,  98  Pa.  St.  154. 

"*  Despatch  Line  v.  Bellamy  M.  Cu..  12  N.  II.  205. 


§  1G7     PERSONAL  PROPERTi'  SUBJECT  TO  GARNISHMENT.        830 

moned  as  a  garnishee  is  liable  for  a  wrongftil  con- 
version *^^  of  property,  or  for  a  breach  of  official 
dutT.*^  "Garnishees  are  required  to  answer  as  to 
indebtedness  and  as  to  assets  or  property  in  hand,  not 
as  to  the  torts  they  may  have  committed  against  the 
defendant  in  the  suit."  Hence,  there  can  be  no  gar- 
nishment of  a  liability  arising  from  such  false  repre- 
sentations as  would  sustain  an  action  for  deceit,^'*''  nor 
for  personal  injuries  claimed  to  have  been  suffered 
from  the  negligence  or  other  wrong  of  the  garnishee.^*** 
If  an  officer  wrongfully  levies  upon  property,  and  sells 
it  under  execution,-  but  no  payment  is  made  to  him 
pursuant  to  such  sale,  he  is  not  liable  for  money  had 
and  received,  but  either  for  a  wrongful  levy,  or  for 
negligence  in  not  collecting  the  purchase  price.  In 
either  event,  there  is  not  such  an  "indebtedness,  right, 
or  credit"  as  is  "liable  to  be  seized  or  taken  under  at- 
tachment." *^®  If  a  railroad  corporation,  in  the  con- 
struction of  its  road,  enters  upon  and  takes  certain 
lands  for  railway  purposes  without  any  agreement 
with  their  owner,  the  claim  of  tfie  latter  is  "for  un- 
liquidated damages  for  a  tortious  act;  such  a  claim  has 
never  been  held  to  come  within  the  attachment 
laws."  -«•> 

A  person  wronged  may  be  in  a  condition  to  waive 
the  wrong  and  to  recover  in  assumpsit.  The  right  to 
make  this  waiver  belongs  only  to  the  injured  party. 

195  Paul  V.  Paul,  10  N.  H.  117. 

196  Hemmenway  v.  Pratt,   23    Vt.  332;    Lomerson  v.  Huffman,  1 
Dutch.  625. 

197  Bates  V.  Forsyth,  69  Ga.  365. 

19S  St.  Joseph  M.  Co.  v.  Miller.  69  Wis.  389;  Lehmann  v.  Farwell, 
95  Wis.  185.  60  Am.  St.  Rep.  111. 

199  I^omerson  v.  Huffman,  1  Dutch.  632. 

200  Selhuimer  v.  Elder,  98  I'a.  St.  154. 


831        PERSONAL  PROPERTY  SUBJECT  TO  GARNISH  MEN  r.     §  1(»7 

T'ntil  it  has  been  marie,  the  wrongdoer  must  b(^  re- 
pii'ded  as  a  tort-feasor,  and  not  as  a  debtor,  and  can- 
not be  charged  as  a  garnisliee.-^* 

Where  a  claim  is  based  upon  a  tort  its  character  is 
not  clinni:;ed  by  any  proceedings  ant<Mior  to  the  entry 
of  judgment,  so  as  to  become  subject  (o  garnishment. 
It  is,  tlierefore,  immaterial  that  an  action  has  been 
commenced  in  which  the  default  of  the  defendant  has 
])een  entered,  and  the  right  to  recover  damages  thereby 
conceded,  for  "the  office  of  a  default  is  not  to  change 
in  the  least  the  nature  of  the  demand  in  suit,  but 
merely  to  dispense  with  the  necessity  of  certain 
proof."  ^**^  Nor  does  the  verdict  of  a  jury  or  the  re- 
port of  a  referee  in  an  action  for  tort  change  the  nature 
of  the  liability.''*^  It  merely  ascertains  the  amount  of 
the  damages.  Thus,  where  a  city  was  garnished  after 
a  verdict  against  it  in  an  action  for  tort,  the  court 
said:  "The  original  cause  of  action  did  not  render  the 
<ity  liable  as  a  trustee,  because  it  is  a  cause  of  action 
arising  from  tort.  The  verdict  on  it  did  not  convert 
it  into  a  debt;  no  action  of  debt  would  lie  on  it.  It 
could  not  constitute  a  debt  till  judgment  should  be 
rendered  upon  it;  and  when  judgment  was  rendered 
upon  it,  it  was  too  late  for  the  city  to  plead  it,  or  other- 
wise bring  it  to  the' notice  of  the  court.  The  city  owed 
the  principal  nothing  when  the  trustee  writ  was 
served,"  ^©4 

201  Lewis  V.  Dubose  &  Co.,  29  Ala.  219. 

202  Holcomb  V,  Town  of  Winchester,  52  Conn.  44S.  52  Am.  Rep, 
C.08. 

203  Crouch  V.  Gridloy.  6  Hill.  250;  Kellojrg  v.  Schuyler.  2  Denlo, 
73;  Ex  parte  Dearborn,  31  N.  B.  3G3;  Lohmann  v.  Farwell,  95  Wis. 
1S.5,  GO  Am,  St.  Rep.  Ill;  Detroit  P.  &  F.  Co.  v.  Reilly.  46  Mich, 
4.19. 

204  Thayer  v.  Southwick,  8  Gray,  229;  Detroit  Post  v.  Reilly,  46 
Mich.  459. 


§  107     FEllSONAL  niOPERTY  SUBJECT  TO  GARNISHMENT.        S32 

It  is  also  well  settled  that  a  claim  for  unliquidated 
damages,  wJiether  for  torts  committed,  or  for  breaches- 
of  contracts,  or  for  any  other  cause,  cannot  make  the 
person  against  whom  the  claim  exists  liable  as  a  gar- 
nishee,"^*'"' Hence,  there  can  be  no  garnishment  of  a  lia- 
bility arising  out  of  a  bond  given  to  pay  the  damages 
which  might  result  from  a  wrongful  attachment.^*^** 
This  rule  also  applies  when  a  lease  is  made,  and  the 
covenants  therein  are  afterward  violated  in  sundry  re- 
spects, entitling  the  lessee  to  damages.^^^''  A  garnishee 
cannot  be  charged  for  any  sum  received  by  him  from 
the  defendant  for  usurious  interest.'®**  This  is  not  be- 
cause the  claim  rests  in  tort,  or  is  for  unliquidated 
damages,  but  rather  by  reason  of  the  legal  principle 
that  the  right  to  recover  such  interest  is  a  personal 
privilege,  depending  for  its  existence  on  the  election  of 
the  party  who  made  the  usurious  payment.  No  very 
precise  definition  of  a  liquidated  claim  can  be  given; 
and,  if  given,  different  minds  may  be  unable  to  agree 
whether  a  particular  state  of  facts  shows  a  liquidated 
claim  within  the  meaning  of  a  definition  of  conceded 
torrectness.  Thus,  while  a  claim  for  loss  against  which 
an  insurance  company  has  agreed  to  indemnify  the 
owner  of  property  destroyed  by  fire  is  undoubtedly  sub- 
ject to  garnishment  as  soon  as  it   is   adjusted,^****  the 

205  nnsrir  v.  Booth.  2  Ired.  282;  Deavor  v.  Keith,  n  Tred.  374;  Ran- 
som V.  Hays.  .39  :\lo.  44.";  Rand  v.  White  Mountains  R.  R.,  40  N.  H. 
79;  Warwick  v.  Chase.  23  ISId.  1.54. 

20G  peet  V.  McDaniel.  27  La.  Ann.  4.55. 

20-  Eastman  v.  Thayer.  00  N.  H.  575. 

208  Eoardman  v.  Roe.  13  Mass.  104;  Grah.im  v.  ;^^oorp.  7  B.  Mon. 
53:  Barker  v.  Esty,  19  A't.  131;  Fish  v.  Field,  19  Vt.  141. 

209  Boyle  v.  Franklin  Fire  Ins.  Co..  7  Watts  &  S.  70;  Franklin 
Fire  Ins.  Co.  v.  W^est.  8  W'atts  &  S.  3.10:  Gove  v.  Varrell.  58  N.  H. 
78.  Wliile  tlie  insurance  company  retains  tlie  ricrlit  to  replace  or  re- 
build the  property  destroyed,  instead  of  paying  its  value,  the  claim 


833        PERSONAL  PROPERTY  SUBJECT  TO  GARNISH MHNT.     §  167 

courts  cannot  agree  regardin;^  the  status  of  such  claim 
prior  to  its  adjustment.  JSenator  Mason,  in  Butts  v. 
Collins,  said:  "But  what  are  uncertain,  unli(j[uidated 
damages?^*®  They  are  such  as  rest  in  oiiiiiion  only, 
and  must  be  ascertained  by  a  jury,  their  verdict  being 
regulated  by  the  peculiar  circumstances  of  each  par- 
ticular case;  they  are  damages  which  cannot  be  ascer- 
tained by  computation  or  calculation — as,  for  instance, 
damages  for  not  using  a  farm  in  a  workmanlike  man- 
ner; for  not  building  a  house  in  a  good  and  sufficient 
manner;  on  warranty  in  the  sale  of  a  horse;  for  not 
skillfully  amputating  a  limb;  for  carelessly  upsetting  a 
stage  by  which  a  bone  is  broken;  for  uuskillfully  work- 
ing raw  materials  into  a  fabric;  and  other  cases  of  like 
character,  where  the  amount  to  be  settled  rests  in  the 
discretion,  judgment,  or  opinion  of  the  jury."  This 
definition  was  quoted  and  approved  in  the  case  of  Mc- 
Kean  v.  Turner,  43  N.  H.  204 — a  case  in  which  an  insur- 
ance company  was  summoned  as  a  trustee.  In  this 
case,  the  court  determined  that  the  company  could  not 
be  held,  because  the  amount  of  the  cJaim  against  it 
was  "a  matter  of  opinion  and  judgment,  to  be  deter- 
mined, not  by  any  fixed  pecuniary  standard,  but  by  an 
opinion  formed  from  all  the  circumstances  of  the  case, 
including  location,  state  of  repairs,  the  quality  of  the 
building,  machinery,  and  fixtures,  the  prices  of  such 
property  in  the  neighborhood,  and,  generally,  all  the 
circumstances  which  bear  on  the  question  of  value."  ^** 
But,  perhaps,  the  better  opinion  is,  that  a  claim  against 
an  insurance  company  for  loss  occasioned  by  the  de- 
fer insnrnnce  cannot  be  parnisliod,  for  It  is  not  due  in  inonpy.  and 
may  never  become  so  due.  ifartz  v.  D.  F.  &  M.  Ins.  Co.,  28  Mich. 
201. 

21"  1.3  Wond.  !."«. 

211  See  Moaoham  v.  McCorbitt.  2  Met.  352. 
Vol.  I.— 53 


§  107     PERSONAL  PKOPERTY  SUBJECT  TO  GARNISHMENT.        834 

struction  of  property  is  no  more  au  uuliqnidated  claim 
than  is  a  debt  due  for  goods  sold  aud  delivered,  to  be 
paid  for  according  to  their  market  value.^^^  We  con- 
fess our  inability  to  define  what  are  liquidated  dam- 
ages within  the  meaning  of  the  decisions  we  are  here 
considering.  In  speaking  of  the  unliquidated  damages 
Avhich  will  support  a  garnishment  it  has  been  said  that 
they  must  be  ascertainable  by  some  certain  standard 
t>r  measure  furnished  by  the  contract  itself.^^^  In  an- 
other it  was  held  that  a  claim  for  damages,  though  for 
the  violation  of  a  contract,  could  not  support  a  gar- 
nishment, where  the  ascertainment  of  the  damages  "re- 
(juired  an  exercise  of  judgment,  discretion,  and  opin- 
ion, and  not  mere  calculation  or  computation."  ^*^* 
These  definitions,  if  applicable  to  the  law  of  garnish- 
ment, must  exempt  therefrom  all  indebtedness,  the 
amount  of  which  has  not  been  settled  by  the  parties, 
unless  there  is  in  a  contract  some  standard,  express  or 
implied,  by  which  such  amount  can  be  ascertained. 
We  have  already  shown  that  some  of  the  courts  refuse 
to  apply  this  test  to  moneys  due  from  an  insurer  to  the 
assured,  though  it  must  be  conceded  that  the  amount 
which  the  latter  is  entitled  to  recover  must  remain  un- 
certain until  fixed  by  the  agreement  of  the  parties,  an 
arbitration,  or  a  judgment  of  the  court.  We  think  the 
l)etter  opinion  is,  that  the  fact  that  the  amount  due 
under  a  contract  is  not  liquidated  thereby,  or  by  any 
standard  disclosed  by  it,  does  not  necessarily  exempt 
it  from  garnishment,  if  the  court  or  jury  has  not  a  dis- 
cretion to  award  more  or  less,  as  shall  seem  fit  under 
the  peculiar  circumstances   of   the    case;  but,  on  the 

212  Knox  V.  Protection  Ins.  Co.,    9    Conn.  430.    2.5    Am.  Doc.  33; 
Girard  F.  &  M.  Ins.  Co.  v.  Fiold.  4.5  Pa.  St.  120:  3  Grant  Cns.  329. 

213  Capes  V.  Burgess,  135  111.  01 ;  Hough  v.  Kuf;ler.  30  ^la.  18G. 

214  Eastman  v.  Thayer,  60  N.  H.  .575. 


835        1'EHSON'AL  I'UOPKUTY  SUliJKCT  TO  OAUNlsHMKNT.     §  ItiS 

oilier  hand,  ought  to  find  a  standjird  in  the  evidence 
add  need  at  the  trial,  and,  when  so  found,  to  apply  it  as 
rigidly  as  if  stated  in  the  eontract.  Thus,  where  a  con- 
tract, express  or  ini[)lied,  is  t(»  jiay  for  pi-opcity  or  ser- 
vice its  market  value,  or  so  much  as  it  is  reasonably 
worth,  it  is  true  that  evidence  must  first  be  given  upon 
tliese  subjects,  and  from  the  same  evidence  dilTerent 
courts  or  juries  might  reach  different  conclusions,  but 
whatever  the  court  or  jury  finds  to  be  the  true  worth,  or 
market  Value,  it  is  the  dut}'  of  the  court  or  jury  to  ac- 
cept as  a  standard  by  which  to  make  the  finding  or  ver- 
dict. In  such  a  case,  we  believe,  that  the  demand, 
though  not  liquidated,  ought  to  be  held  subject  to  gar- 
nishment. A  liability  may  be  exempt  from  garnish- 
ment though  not  founded  in  tort,  nor  for  the  recovery 
of  damages,  if  it  is  unliquidated,  and  the  parties  have 
the  right  to  have  it  liquidated  by  a  proceeding  in  chan- 
cery before  either  becomes  liable  at  law  to  the  other. 
Thus,  it  is  a  familiar  principle  of  law  that  while  the 
business  of  a  partnership  remains  unsettled,  neither  of 
the  partners  can  recover  of  the  other  in  an  action  at 
law  the  balance  which  he  claims  would  be  due  him 
upon  such  settlement.  It  follows  that  tlie  creditors  of 
one  of  the  partners  have  no  rights  superior  to  their 
debtor,  and  that  as  he  must  await  an  accounting  be- 
fore he  can  assert  any  claim  by  action  at  law,  so  must 
they  await  such  accounting  before  they  can  proceed  by 
garnishment.^*^ 

5  168.  Debt  Due  by  Negotiable  Note. — A  garnishee  is 
not,  by  means  of  the  garnishment,  to  be  placed  in  a 
worse  situation  than  before,  nor  is  his  contract  to  be 
varied  or  made  more  perilous.     He  is  not  thereby  to 

215  Bnrnharn  v.  Hopkiiisou,  17  \.  TI.  2.'0:  DriseoU  v.  Hoyt,  11  Gray, 
404;  Sheedy  v.  Second  Nat.  Bank,  02  Mo.  17. 


§  IGS    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        836 

be  made  answerable  to  one  person,  when  he  owes  an- 
other. One  who  has  executed  a  negotiable  note  can 
rarely  know  to  whom  he  may  be  liable  to  make  pay- 
ment. When  summoned  as  garnishee,  he  can  only  an- 
swer that  he  was  indebted  to  the  defendant,  but  that 
he  does  not  know  whether  his  obligation  is  now  due 
to  the  defendant  or  has  been  transferred  to  another. 
While  the  present  ownership  of  the  note  remains  un- 
known, it  is  obvious  that  no  judgment  can  be  entered 
against  the  garnishee  without  exposing  him  to  "a  double 
accountability:  1.  Upon  the  judgment;  and  2.  Upon 
the  note,  if  it  shall  prove  to  have  been  transferred. 
Hence,  it  must  follow  that  negotiable  paper  ought 
never  to  be  subject  to  garnishment,  except  when  its 
present  ownership  can  be  shown  to  be  in  the  defend- 
ant, and  it  is  overdue;  or  except  where  it  can,  as  soon 
as  judgment  is  given  against  the  garnishee,  be  depos- 
ited in  court,  or  with  the  garnishee,  or  in  some  man- 
ner deprived  of  its  negotiable  character.^^**  Thus,  it 
was  said  at  an  early  day  in  New  Hampshire,  that  "it 
has  always  been  considered  as  settled  in  this  state 
that  a  trustee  who  has  given  a  negotiable  note  to  the 
principal  cannot  be  charged  as  a  trustee  on  account  of 
such  note.  The  reason  of  this  rule  is  founded  upon- the 
negotiable  quality  of  the  paper.  If  the  trustee  could 
be  charged  in  such  a  case,  then  it  might  happen  that 
either  a  bona  fide  purchaser  of  the  note  must  lose  the 
amount  of  it,  or  the  maker,  without  any  fault  on  his 
part,  be  compelled  to  pay  it  twice.  To  avoid  such  a  di- 
lemma, the  rule  was  established.''^*'  Rut,  since  this 
decision  was  pronounced,  the  law  of  the  state  has  been 

216  Cloiish  V.  Buck,  6  Neb.  343;  King  v.  Vance.  46  Ind.  24G;  Huat 
V.  Ely.  17  Fla.  77.5. 
117  Stone  V.  Dean,  5  N.  H.  503. 


837        PERSONAL  PUOl'KRTV  SL'liJKLT  TO  GAKNi.MIMtNT.     g  168 

chan«i,('(l  by  statute,  making'  n('«;()tiable  papt-r  subject 
to  j^ai'iiisliinent,  au«l  protect iuj;-  the  maker  from  the 
claim  of  any  indorsee  whose  title  was  acquired  subse- 
quently to  the  service  of  the  trustee  process."^''  lu 
Vermont  it  was  decided,  upon  principle,  that  the  maker 
of  a  negotiable  note  could  not  be  beld,  unless  it  could 
be  shown  that  the  note  had  not  been  transferred,  and 
that  it  could  be  prevented  from  continuing  its  negotia- 
ble character.^*"  The  legislature  then  made  all  nego- 
tiable paper  subject  to  garnishment,  unless  notice  of 
its  assignment  had  been  givi'u  to  the  maker."**  In 
Pennsylvania,  it  seems  in  the  first  instance  to  have 
been  decided  that  negotiable  notes  could  not  be 
reached  by  garnishment.--^  Subsequently,  the  courts 
held  that  such  notes  were  liable;  that  the  judgment 
against  the  garnishee  could  not  prejudice  an  assignee 
without  notice;  and  that  the  garnishee,  for  his  protec- 
tion, could  require  the  notes  to  be  placed  in  the  cus- 
tody of  the  court.---  In  South  Carolina.---'*  Louisi- 
ana,^-^  and  Texas,^-^  the  maker  of  negotiable  notes 
can   be  charged  as  a  garnishee  only  when  it   can   be 

218  Amoslieag  I\I.  Co.  v.  Gibbs.  8  Fost.  .",10. 

219  Hntf'hins  v.  Evans,  1.3  Vt.  541;  Ilinsdill  v.  Safford.  11  Yt.  .309. 

220  Kimball  v.  Gay.  Ifi  Vt.  1.31;  Chase  v.  Haujrhton.  10  Yt.  r>M; 
Barnoy  v.  Donslas.  10  Yt.  98;  Peck  v.  Walton.  25  Yt.  33;  Emerson  v. 
Patrldfre,  27  Yt.  8,  02  Am.  Dec.  017;  Williams  v.  Shepherd,  33  Vt.  • 
104;  Seward  v.  Garlin,  33  Yt.  583. 

221  Ludlow  r.  Binpham,  4  Dall.  47. 

222  KieCfer  v.  Elder.  IS  Pa.  St.  .388;  Hill  v.  Kroft.  29  Pa.  St.  180. 

223  Gaffney  v.  Bradford.  2  Bail.  441;  :McBride  v.  Floyd.  2  Bail.  209. 

224  Sheetz  r.  Culver.  14  La.  440.  32  Am.  Doc.  .■'>03;  Kimball  v.  Plant, 
14  La.  511;  Erwin  v.  C.  &  R.  R.  Bank.  3  La.  Ann.  ISO;  Ross  v.  Savoy, 
5  La.  Ann.  102;  Harris  v.  Bank  of  Mobile,  5  La.  Ann.  538;  Denhara 
V.  Pogue,  20  La.  Ann.  105. 

225igiehart  v.  Moore,  21  Tex.  501:  Price  v.  Brady,  21  Tex.  014; 
Rassett  v.  Garthwalte.  22  Tex.  2.30.  73  Am.  Dec.  257:  Kapp  v.  Teel. 
a3  Tex.  811;  Wybrauts  v.  Rice.  3  Tex.  458;  Thompson  v.  Gainesville 
Bank,  06  Tex.  150. 


§  168    PEKl>ONAL  PltOPERTY  SUBJECT  TO  GARNISHMENT.       b** 

shown  that  they  are  still  in  the  possession  of  the  de- 
fendant. In  Indiana,--''  Michigaur-'  Minnesota,^^* . 
and  Wisconsin,  "-^  the  rule  is  in  substantial  conformity 
with  that  adopted  in  the  states  last  named.  In  Iowa 
the  statute  provides  that  "the  garnishee  shall  not  be 
made  liable  on  a  dpbt  due  by  negotiable  or  assignable 
paper,  unless  such  paper  is  delivered,  or  the  garnishee 
completely  exonerated  or  indemnified  from  all  liability 
thereon,  after  he  may  have  satisfted  the  judgment.-^'* 
In  California,  the' maker  of  a  negotiable  note,-^*  or  of 
a  negotiable  certificate  of  deposit,-^^  cannot  be  gar- 
nished before  its  maturity  so  as  to  impair  the  rights  of 
a  subsequent  bona  fide  holder.  In  Georgia.^'=*  Ken- 
tucky .=^^^  Massachusettsr^i-  and  Mississippi,--**®  Mon- 
tana,-"'' and  Nebraska, 2-'*'^  the  maker  of  negotiable  pa- 
per is  protected  from  the  possibility  of  loss  by  gar- 
nishment. 

226  Smith  V.  Blatchford,  2  Ind.  184,  52  Am.  Deo.  504;  Junction 
R.  R.  Co.  V.  Cleneay,  13  Ind.  101;  Stetson  v.  Cleneay.  14  Ind.  453; 
Cadwalader  y.  Hartley,  17  Ind.  520;  Cleneay  v.  J.  R.  R.  Co.,  26  Ind. 

375. 

227  Littlefiold  V.  Hodge,  6  Mich.  326. 

228  Hubbard  v.  Williams,  1  Minn.  54,  55  Am.  Dec.  66. 

229  Carson  v.  Allen,  2  Chand.  123;  Davis  v.  Pawlette,  3  Wis.  300, 
62  Am.  Dec.  690;  Mason  v.  Noonau,  7  Wis.  600. 

230  Hughes  V.  Monty,  24  Iowa,  490;  Wilson  v.  Albright,  2  G. 
Greene,  125;  County  Comm'rs  v.  Fox,  1  Morris,  48;  Yocum  v.  White, 

'36  Iowa,  2S8. 

231  Gregory  v.  Higgins,  10  Cal.  339. 

232  ilcMillan  v.  Richards,  9  Cal.  305,  70  Am.  Dec.  655. 

233  Burton  v.  W^yune,  55  Ga.  015;  Mius  v.  West,  38  Ga.  18,  explain- 
ing King  V.  Carhart,  18  Ga.  650. 

234  Greer  v,  Powell,  1  Bush.  489. 

235  Eunson  v.  Healy,  2  Mass.  32;  Perry  v.  Coates,  9  Mass.  537; 
Wood  V.  Bodwell,  12  Pick.  268;  Maine  F.  Ins.  Co.  v.  Weeks,  7  Mass. 

438.       . 

238  McNeil  V.  Roache,  49  Miss.  436. 

237  Perkins  v.  Guy,  2  Mont.  15. 

238  Clough  V.  Buck,  6  Neb.  343. 


WU        P]:U.>,ONAL  PKOPER'iY  feUliJECT  TO  GAilMMiMENT.     3  l-^a 

In  Maryland,  the  maker  of  negotiable  notes  was 
garnished.  They,  it  clearly  appeared,  wi-vc  transferred 
before  their  maturity;  but  the  evidence  was  conllii  i  iiig 
with  respect  to  the  question  whether  such  tiaiisfer  wns 
before  or  after  the  garnishnient.  TIk'  garnishee  asked 
for  an  instruction  to  the  jury,  to  the  elTect  that  if  the 
transfer  was  made  prior  to  the  maturity  of  the  notes 
to  an  indorsee,  bona  fide,  for  value,  of  which  transfer 
the  garnishee  had  no  notice,  then  that  the  verdict  must 
be  in  his  favor.  This  instruction  was  refus<*d,  and  on 
account  of  such  refusal  the  judgment  against  the  gar- 
nishee was  reversed.  "The  difficulty  of  subjecting  cred- 
its  of  that  kind  to  the  process  of  garnishment  is  to  be 
found,  not  only  in  the  nature  and  character  of  negotia- 
ble paper,  but  also  in  placing  the  garnishee  in  a  worse 
condition  than  he  otherwise  would  be,  and  subjecting 
him  to  the  danger  of  having  to  pay  the  same  debt  twice 
over;  for,  if  a  judgment  of  condemnation  be  recovered 
against  him.  its  payment  would  not  serve  as  a  defense, 
against  a  suit  upon  the  note  by  a  bona  fide  indorsee  for 
value,  who  received  it  before  maturity  without  notice 
of  the  attachment.  The  rights  of  the  indorsee  could 
be  in  no  manner  affected  by  the  attachment  proceed- 
ing, to  which  he  is  not  a  party,  and  which  as  to  him 
is  res  inter  alios.  On  the  other  hand,  if  it  could  be 
maintained  that  in  such  case  the  judgment  of  condem- 
nation and  its  payment  by  the  garnishee  will  protect 
him  against  the  claim  of  the  indorsee,  which  would  be 
contrai-y  to  sound  principles,  sucli  a  doctrine  would 
destroy  the  negotiability  of  all  promissory  notes,  and 
interfere  injudicioush'  with  the  daily  business  and 
transactions  of    men  dealing   with    commercial    pa- 


^  106    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        610 

p^j.,,239     jjj  Ohio,  all    debts,  whether    evidenced    by 
negotiable  instruments  or  not,  are  by  statute  declared 
to  be  subject  to  garnishment.    The  construction  given 
to  this  statute,  however,  does  not  impair  the  negotia- 
bility of  such  debts.    "No  judgment  charging  the  gar- 
nishee can  be  rendered  in  any  case  of  debt  not  due  until 
after  it  becomes  due,  and  not  then,  as  to  negotiable 
paper,  if  it  appears  that  the  garnishee  is  liable  to  a 
bona  fide  holder."    The  garnishee  is  entitled  to  a  day  in 
court.     The  garnishment  entitles  the  judgment  cred- 
itor, upon  the  maturity  of  the  debt,  to  bring  an  action 
against  the  garnishee.    This  action  the  garnishee  may 
successfully  defend   by  showing   that,  before   its   ma- 
turity, the  negotiable  debt  was  transferred  to  an  in- 
dorsee, bona  fide,  for  value,  and  without  notice  of  the 
garnishment;^*"  and  it   is   not   material  whether  the 
garnishee  had  notice  of  the  transfer  or  not  at  the  time 
of  garnishment.^*^    The  result  of  the  decisions  in  Con- 
.necticut  and  North  Carolina  is  substantially  identical 
with  that  of  the  decisions  in  Ohio;  viz.,  the  right  of 
garnishment  does  not  affect  the  negotiability  of  the 
debt,  nor  impair  the  rights  of  a  bona  fide  holder  thereof 
before  maturity;  and  in  the  last-named  state  the  gar- 
nishee has  the  right  to  insist  upon  the  production  and 
surrender  of  the  note  before  judgment  against  him  as 
garnishee,  or  may  require  indemnity  as  in  case  of  a 
lost  note.^*^ 

239  Cruett  V.  Jenkins,  53  Md.  223,  explaining  and  overruling 
Steuart  v.  West,  1  Har.  &  J.  536,  and  Somerville  v.  Brown,  5  Gill, 
399,  and  Brown  v.  Somerville,  8  Md.  444. 

240  Secor  v.  Witter,  39  Ohio  St.  218. 

241  Knisely  v.  Evans,  34  Ohio  St.  158. 

242  Shuler  v.  Bryson,  65  N.  C.  201;  Myers  v.  Beeman,  9  Ired.  110; 
Orraond  v.  Moye,  11  Ired.  564;  Enos  v.  Tuttle,  3  Conn.  27;  Culver  v. 
Parish,  21  Conn.  408. 


841        PERSOX.VL  I'ilOrEllTY  SUBJECT  TO  GAIiNLSlIMENT.     §  103 

In  Alabama,  the  question  lias  bocii  caivfully  coiisid- 
orcd  in  a  case  wlicrein  it  appeared  that  the  transfer  of 
nep;otiable  paper  had  been  made  after  the  <;ariiishiiH'iit 
of  the  maker,  but  before  the  maturity  of  the  note.    The 
eourt  said:  "A  judgment  cannot  and  ought  not  to  be 
rendered  against  a  garnishee  uidess  it'^vill  shield  him 
from   any  demand  of   the   judgment    d(  btor,  or  those 
claiming   under   him.    The  judgment   cannot   protect 
him  against  a  right  and  title  which  is  independent  of 
and  paramount  to  that  of  the  judgment  debtor— a  right 
and  title  which  the  law  enables  the  debtor  to  confer  in 
pursuance  of  a  well-definM  public  policy,  in  opposition 
to  its  own  maxims,  in  reference  to  any  and  all  other 
species  of  property.    The  very  nature,  import,  and  ob- 
ligation of  negotiable  paper  is  not  to  pay  to  a  particu- 
lar person,  but  to  pay  whoever  may  be  its  bona  fide 
holder  at  maturity,  and  to  pay  him  absolutely  and  at 
all  events.    In  its  structure  and  form,  and  the  charac- 
ter of  its  obligation,  it  is  essentially  distinguishable 
from  a  promise  to  pay  a  particular  person  a  particular 
sum,  which  is  so  hemmed  and  circumscribed  that  it 
cannot  pass  without  putting  to  in<iuiry  all  who  touch 
and  deal  with  it.    The  principle  is  therefore  well  set- 
tled that,  if  a  garnishment  will  reach  negotiable  paper 
before  the  rendition  of  judgment  against  the  garnish- 
ees, it  must  be  affirmatively  shown  that  the  note  had 
become  due,  and  was  still  the  property  of  the  payee  or 
of  the  holder,  as  whose  i)roperty  the  garnishment  is 
intended  to  condemn  it.''  -*^    Nor  does  it  seem  to  be 
essential  that  the  transfer  of  negotiable  paper  be  in  all 
respects  a  complete    legal    transfer,  in  the  technical 
sense,  to  entitle  the  holder  to  protection  against  gar- 
nishment.    M.  made  his  negotiable  note  in  favor  of  S., 

2"  Mayberry  v.  Morris,  G2  Ala.  US;  Mills  v.  Stewart.  12  Ala.  90. 


§  IGS  PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.   842 

Avbo  indorsed  it  in  blanlj,  and  delivered  it  to  a  national 
bank  as  collateral  security  for  a  loan.  While  the  note- 
r(niiained  in  the  bank,  O.  &  C.  purchased  it  of  S., 
who  gave  them  an  order  on  the  bank  therefor.  The 
bank,  having  been  paid  the  amount  of  its  debt,  made 
no  claim  to  the  note,  but  declined  to  deliver  it,  because 
of  a  garnishment  served  prior  to  the  sale  of  the  note 
to  O.  &  C,  but  of  which  they  had  no  notice  at  the  time 
of  such  sale.  It  was  insisted  that  O.  &  C.  were  not  en- 
titled to  protection  as  bona  fide  indorsees  or  holders 
of  the  note,  because  it  had  not  been  delivered  to  them. 
The  court  held  that  as  the  note  was  indorsed  in  blank,^ 
and  was  therefore  transferable  by  delivery,  a  direction 
given  to  the  bank  to  deliver  it  to  the  purchasers  was 
sufficient  as  a  constructive  delivery.^^^  So,  in  South 
Carolina,  the  depositing  of  negotiable  bills  in  the  mails 
was  adjudged  to  be  a  sufficient  delivery  thereof  to  give 
the  persons  to  whom  they  were  mailed  precedence  over 
an  attachment  levied  after  such  mailing  but  before  the 
notes  reached  their  destination.^'*^ 

A  note  is  not  negotiable  unless  payable  in  money. 
Hence  the  maker  of  a  note  payable  in  bank  notes  or 
current  bills  may  be  held  as  a  garnishee.^*^  If  the 
maker  of  negotiable  paper  is  summoned  as  a  garnishee, 
he  must  make  the  defense  that  the  note  is  transferable, 
and  that  he  does  not  know  who  the  owner  is,  or  who 
he  may  be,  when  payment  becomes  due.  If  he  neglects 
to  avail  himself  of  this  defense,  and  permits  judgment 

244  TTowe  V,  Quid,  28  Gratt.  1. 

245  Mitchell  V.  Byrne,  G  Rich.  171;  see,  also.  Lysnirht  v.  P.ryant,  GT 
Eng.  Com.  L.  46. 

246riatt  V.  Sauk  Co.  Bank.  17  Wis.  222:  Ford  v.  Mitchell.  1.^)  Wis. 
304;  Kirkpatrick  v.  McCullongh,  3  Humph.  171;  .30  Am.  Dec.  158, 
Whiteman  v.  Childress.  G  Humph.  303;  Fry  v.  Rosseau,  3  McLean, 
100;  Irvine  v.  Lowry,  14  Pet.  293. 


843        PERSONAL  PilOI'EiaV  SUli-JECT  To  (iAlLNlSHMENT.     §  ICi 

to  be  entered  against  Lini,  lie  cannot,  on  that  account, 
resist  an  action  bronght  against  liiin  by  the  asslgne<* 
of  the  note.''*'^  In  Tennessee  it  was  held  that  a  debt 
due  by  a  negotiable  note  may  be  attached.*^"*  The 
practical  result  of  this  decision  has  been  obviated  by 
subsequent  decisions,  declaring  that  if  the  garnishee 
answers  that  he  executed  a  negotiable  note  to  the  de- 
fendant, but  does  not  know  who  now  holds  the  note, 
nor  to  whom  the  debt  is  now  owing,  no  judgment  can 
be  entered  against  him.-''*  After  this  the  code  was 
amended  so  as  to  provide  that  a  garnishee  shall  not  be 
liable  upon  a  debt  due  by  negotiable  paper,  unless  it  is 
delivered  up,  or  he  is  otherwise  completely  exonerated 
from  liability  thereon.""'**  In  Missouri,  debts  due  by 
negotiable  notes  may  be  attached."''*  The  garnishee 
may,  however,  "protect  himself  by  compelling  the  at- 
tachment debtor  to  produce  the  note  in  controversy, 
or  show  a  sale  and  transfer,  if  one  has  been  had."  "'" 
In  New  Jersey,  negotiable  debts  are  subject  to  gar- 
nishment, both  before  and  after  their  maturity.  If  the 
debt  is  claimed  by  an  attaching  creditor  and  by  an  in- 
dorsee, bona  fide,  before  maturity,  the  debtor  may  com- 
pel these  adverse  claimants  to  interplead,  and  to  de- 
termine to  which  he  is  answerable.    Up  to  the  present 

247  Shiilor  V.  Bryson.  C,^^  N.  C.  201;  Myers  v.  BcH'iiian,  9  Irod.  llC; 
Orniond  v.  Moye,  11  Tred.  504. 
a*"*  Huff  V.  Mills.  7  Yer?.  42. 

249  Turner  v.  Armstrong,  9  Yerg.  412;  Moore  v.  Greene,  4  Humph. 
299;  Daniel  v.  Rawlings.  6  Humph.  403.  See.  also.  Yarhoroutrh  v. 
Thompson,  3  Smedes  v<c  M.  291;  Thompson  v.  Shelby,  3  Smedes  &  M. 
29G. 

250  Matlioney  v.  Hushes.  10  Heisk.  401. 

251  Quarles  v.  Porter.  12  Mo.  70;  Colcord  v.  Daiirott.  IS  Mo.  5.'7-. 
Scott  v.  Hill.  3  Mo.  S8.  22  Am.  Dee.  402:  St.  Louis  Ins.  Co.  v.  rolu-n. 
9  Mo.  421;  Dickey  v.  Fox.  24  Mo.  217;  Waldeu  v.  Valiant,  15  Mo. 
409:  Funkhouser  v.  How,  24  Mo.  44. 

252  Murphy  v.  Wilson,  45  Mo.  427. 


§  IGS    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        SH 

time,  the  courts  of  that  state  seem  to  have  been  suc- 
cessful in  avoiding  the  necessity  of  determining  which 
of  these  adverse  claimants  is  entitled  to  preference.^''* 
The  law  respecting  the  garnishment  of  negotiable  pa- 
per has  been  thus  stated  in  a  recent  case  by  the  court  of 
appeals  of  New  York:  "It  is  generally  the  law  in  this 
country,  under  statutes  like  those  which  existed  in  this 
state,  that  a  debt  evidenced  by  a  negotiable  security 
can  be  attached,  and  the  following  rules  may  be  de- 
duced from  the  adjudged  cases:  While  the  negotiable 
security  is  held  by  the  attachment  debtor,  it  may  be 
attached  by  the  service  of  an  attachment  upon  the 
maker,  pi!'ovided  the  negotiable  security  is  past  due. 
If  the  security  be  not  past  due  at  the  time  the  attach- 
ment is  served,  but  remains  in  the  hands  of  the  attach- 
ment debtor  until  it  becomes  due,  then  the  attachment 
is  effectual.  Where  a  debt  evidenced  by  a  negotiable 
security  is  thus  attached,  the  attachment  is  effectual 
against  everybody  except  a  bona  fide  taker  of  the  secu- 
rity after  the  attachment.  The  care  and  purpose  of 
the  courts  in  such  cases  is  to  protect  the  maker  of  the 
security  against  double  payment,  and,  when  that  can 
be  accomplished,  the  attachment  can  be  made  effective. 
If  the  security  is  not  due,  there  must  be  proof  that  it 
was  in  the  hands  of  the  attachment  debtor  when  the 
attachment  was  served,  and,  in  the  absence  of  proof, 
that  will  not  be  presumed;  in  other  words,  it  must  be 
shown  that  it  was  in  such  a  condition  as  to  be  liable  to 
attachment.  It  has  generally  been  understood  to  be 
the  law  in  this  state  that  a  debt  evidenced  by  a  nego- 
tiable security,  whether  due  or  not,  so  long  as  it  is  in 
the  hands  of  the  attachment  debtor,  can  be  attached 
by  serving  the  attachment  on  the  maker  of  the  security. 

253  Briant  v.  Reed,  14  N.  J.  Eq.  271. 


845       PERSONAL  PKOPliRTY  SUBJECT  TO  GARNISHMENT,     g  108 

The  attachment  may  be  defeated  by  a  subsequent 
transfer  of  the  security  to  a  bona  fide  taker  for  value, 
■who  is  in  a  position  to  enforce  it  against  the  maker. 
But  before  the  debt  can  be  enforced  against  the  maker 
under  the  attachment,  the  sheriff  must  obtain  posses- 
sion of  the  security,  so  that  upon  the  trial  he  can  sur- 
render it  to  the  maker,  or  he  must  show  that  it  has 
already  got  into  the  hands  of  the  maker,  or  that  for 
some  other  reason  it  could  not  be  enforced  against  the 
maker  by  any  other  person."  ^^^  In  this  case  it  ap- 
peared that  a  railroad  corporation,  having  a  deposit 
with  the  bank,  drew  it's  check  therefor  payable  to  the 
order  of  R.,  as  its  assistant  treasurer.  The  check  was 
certified  by  the  bank  to  be  good,  delivered  by  it  to  E., 
and  charged  against  the  railroad  company.  Three 
days  later  the  bank  was  garnished  under  an  attach- 
ment against  the  company.  After  being  by  the  bank 
informed  of  this  garnishment,  11.  opened  an  individual 
account  with  the  bank,  upon  which  he  deposited  the 
check  in  question,  it  having  remained  in  his  possession, 
and  the  property  of  the  railway  company.  The  pro- 
ceeds of  the  check  were  subsequently  drawn  out  of  the 
bank  by  K.,  and  applied  to  the  payment  of  other  liabil- 
ities of  the  railway  company.  As  the  bank  had  reason 
to  believe,  at  the  time  it  received  the  deposit  in  the 
name  of  K.,  that  the  check  deposited  was  the  property 
of  the  railway  company,  it  was  held  to  be  liable  for  the 
amount  thereof  to  the  attaching  creditor.  If  money 
is  deposited  in  a  savings  bank,  and  a  pass-book  issued 
to  the  depositor,  and  such  book  is  transferable  by  in- 
dorsement, it  is  nevertheless  not  to  be  regarded  as  a 
negotiable  instrument  for  all  purposes.  .  The  bank  may 

2B4  Bills  V.  N.  p.  Bank  of  N.  Y.,  09  X.  Y.  349;  Gibson  v.  National 
P.  B.,  98  N.  Y.  87. 


^  16 J    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        846 

bo  garnislied  under  an  execution  or  attachment  against 
the  depositor."^^ 

After  the  maturity  of  a  negotiable  instrument  it 
loses  its  negotiability,  and,  if  afterward  transferred  by 
the  payee,  the  transferee  must  accept  it  subject  to  pre- 
existing rights  and  defenses.  The  indebtedness  is, 
after  such  maturity,  subject  to  garnishment,  and  the 
rights  acquired  by  the  garnishment  cannot  be  defeated 
by  a  subsequent  transfer.^'^**  Though  the  garnishment 
is  not  attempted  until  after  the  maturity  of  the  note,  it 
is  still  obviously  incumbent  on  the  judgment  creditor, 
before  he  can  become  entitled  to  a  judgment  against 
the  garnishee,  to  show  that  the  note,  at  the  time  of  the 
garnishment,  remained  the  property  of  the  defendant 
in  the  writ. 

§  169.  Debts  Due  from  Two  or  More  Persons,  or  to 
Two  or  More  Persons. — The  debt  sought  to  be  subjected 
to  execution  may  be  owing  from  two  or  more  persons. 
In  that  event,  all  the  debtors  ought  to  be  summoned 
as  garnishees;  for,  although  the  debt  is  due  from  them 
severally,  and  either  of  them  is  liable  to  an  action 
therefor  without  joining  the  others,  yet  if  one  be 
omitted  from  the  garnishment,  he  may,  if  he  sees 
proper,  pay  the  debt  to  the  creditor,  and  thus  defeat  the 
garnishment.  The  plaintiff  who  undertakes  to  roach  a 
debt  by  garnishment  or  by  proceedings  supplemental 
to  execution,  ought  to  be  entitled  to  enforce  the  debt 
against  the  person  from  whom  it  is  owing,  in  the  same 

255  Nichols  V.  Schofield,  2  R  I.  123;  Witte  v.  Vincenot.  43  Cal.  32r). 
See  State  v.  Judge  Co.  Ct.,  11  Wis.  50,  Bed?  v.  Cole.  16  Wis.  03.  and 
Smith  V.  Picket,  7  Ga.  104,  50  Am.  Dec.  385,  for  discussion  of 
effect  of  instruments  made  nosotiahle  by  agreement. 

2r.B  Somers  v.  Losoy.  48  Mich.  204:  Serviss  v.  Washtenaw  Circuit 
.Tudge,  110  Mifh.  101;  Thompson  v.  Gainesville  Bank,  CG  Tox.  156. 


S47       PEltSONAL  PROPERTY  SUBJECT  TO  0 AUNlSUMENT.     g  1C3 

manner  and  under  the  same  eircumstanees  as  it  could, 
but  for  the  garnishment,  liave    been  enforced    by  the 
original  creditor.     If  tlie  d<'bt  was  due   liom   two  or 
more  persons  jointly,  the  original   creditor  could  en- 
force it  only  b}'  an  action  against  all  tlie  debtors;  but 
if  it  was  due  from  two  or  more,  jointly  and  severally, 
then  it  could  be  enforced  against  all  or  against  one,  as 
the  creditor  might  choose  to  proceed.     These  princi- 
ples, though  usually  apjdied  to  proceedings  by  garnish- 
ment, have  not  been  universally  recognized  as  applica- 
ble to  those  proceedings.    AVith  respect  to  proceedings 
against   joint   debtors,  it   is   very  generally  conceded 
that  all  must  be  summoned.*^''     Otherwise  a  judgment 
might  be  obtained  against  the  one  sued,  omitting  the 
others.    This  the  defendant  in  execution  was  not  enti- 
tled to,  because  each  of  them  had  a  right  to  insist  that, 
as  the  liability  was  joint,  the  remedy  should  be  pursued 
against  all,  and  that  neither  should  be  subjected  to  a 
separate   judgment.     Hence,  a    garnishing   judgment 
creditor  must  pursue  all  the  persons  jointly  liable  to 
the  defendant  in  execution  upon  the  debt  sought  to  be 
garnished.^"'**  In  Massachusetts,  the  nonjoinder  of  a  co- 
debtor  must  be  objected  to  by  a  plea  in  abatement;  -•'** 
but  this  rule  seems  not  to  be  applied  to  proceedings  by 
garnishment  in  most  of  the  other  states.    It  seems  to 
be  sufficient  for  the  answer  of  the  garnishee  to  deny 
in  general  terms  his  indebtedness  to  the  defendant  in 

257  Rix  V.  Elliotf.  1  N.  H.  184;  Hudson  v.  Hunt,  r,  X.  n.  538; 
Jewett  V.  Bacon.  0  Mass.  GO;  Atkins  v.  Presoott.  10  N.  TT.  120;  Ladd 
V.  Bakor.  G  Fost.  7G;  Pettes  v.  Spaldinjr.  21  Yt.  GG;  Xash  v.  Bropliy, 
13  Met.  47G;  "Wilson  v.  Allirluht,  2  G.  Greene.  12.';  Warner  v.  Perkin.^. 
S  Ciish.  niS;  IToskins  v.  Johnson,  24  Ga.  G2.";  Ellicott  v.  Smith,  2 
Cranch  C.  C.  543;  Falrchild  t.  Lampson.  37  Yt.  407. 

2=8  Jones  V.  Langhorne,  19  Colo.  20G;  U'Counell  v.  Ackerman,  G2 
Md.  337;  Hirth  v.  Pfeifle.  42  Mirli.  .",1. 

2=9  Hoyt  V.  Robinson,  10  Gray,  371;  Sabiu  v.  Cooper,  15  Gray,  532. 


§  169    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        81S- 

execution.  If  the  plaintiff  in  execution  replies  to  suck 
answer,  claiming  a  joint  indebtedness  from  tlie  gar- 
nishee and  others  to  the  defendant,  no  especial  plea  to 
such  reply  need  be  made,  and  the  garnishee  must  be 
released,  because  his  codebtors  are  not  made  parties  Xo 
the  proceeding  with  him."***'  If  the  debt  is  due  from 
a  partnership  composed  of  resident  and  nonresident 
members,  it  may  be  garnished  in  Massachusetts  and 
Vermont  by  summoning  the  resident  members,"*'^  ex- 
cept where  it  was  contracted  in  a  foreign  land  by  a 
member  of  the  firm  there  residing,  and  carrying  on  busi- 
ness in  behalf  of  the  firm.^**^  This  exception  was  made 
because  it  would  be  impossible  for  the  resident  mem- 
bers to  be  constantly  informed  with  regard  to  indebt- 
edness alleged  to  have  been  created  by  their  coiJartners 
in  the  foreign  country. 

The  liability  of  jjartners,  unless  modified  by  statute, 
is  unquestionabh'  joint,  and  not  joint  and  several. 
The  creditors  of  the  partnership  have  no  right  to  pro- 
ceed against  any  of  the  partners  severally  by  action. 
Neither  have  the  creditors  of  a  credit  or  of  a  partner- 
ship the  right  to  proceed  by  garnishment  against  one 
only  of  the  partners,  as  if  the  debt  were  his  individual 
debt.  Hence,  if  garnishment  be  sued  out  in  two  dif- 
ferent actions,  one  against  A  and  the  other  against  A 
and  B  as  partners,  and  the  object  be  to  reach  a  debt 
due  from  the  firm,  the  latter  garnishment  must  be 
awarded  precedence  over  the  former,  though  subse- 
quently served.^**^  If  the  garnishment  is  directed 
against  one  person,  and  he  answers  that  he  personally 

2C0  Jones  v.  Langhorne,  10  Colo.  200. 

261  Parker  v.  DanforUi.  If!  :Mass.  299;  Peck  v.  Barnum,  24  Vt.  75.. 

2C2  Kifider  V.  Pafkavd.  13  Mass.  FO. 

263  Hoskins  v.  Johnson,  24  Ga.  028. 


849       PERSONAL  PllOrKRIY  SUBJECT  TO  GARNISUMENT.     §   16'J 

owes  the  jiulgment  debtor  iiothinj^,  but  admits  the  lia- 
bility of  himself  and  anotlier  as  members  of  a  firm,  he 
is  generally  entitled  to  be  discharged.-**^  If  the  gar- 
nishment is  directed  against  the  firm,  there  may  be  cir- 
cumstances which  will  authorize  the  court  to  dispense 
with  the  service  of  ])rocess  on  some  of  its  members,  as 
where  it  is  impossible  so  to  do  because  of  his  being  be- 
yond the  jurisdiction  of  the  court.  Thus,  where  gar- 
nishment was  directed  to  only  one  member  of  a  firm, 
the  court  said:  "Had  the  partner  been  included  in  the 
writ,  whether  service  was  on  him  or  not,  the  firm 
would  have  been  holden;  but  the  trustee  would  not 
have  been  permitted  to  disclose  till  he  could  have  in- 
formed his  partner  of  the  pendency  of  the  trustee  pro- 
cess. If  the  partner  had  not  paid  the  claim  to  the  prin- 
cipal debtor,  then  lie  could  not  do  it  after  such  notice, 
except  in  his  own  wrong,  and  the  trustee  might  well 
disclose  as  to  the  liability  of  the  firm.  Here  no  claim 
is  made  against  the  firm,  and  the  trustee  is  in  no  man- 
ner liable."  ^^^^ 

Wliere  a  debt  is  due  from  two  or  more,  jointly  and 
severally,  the  creditor  may  unquestionably  sue  all  of 
the  debtors  jointly,  or  each  of  them  separately.  If  a 
creditor  of  the  creditor  seeks  to  levA'  upon  and  enforce 
the  same  liability,  be  ought  to  be  entitled  to  the  like 
option  of  treating  the  debt  as  either  joint  or  several, 
and  therefore  be  privileged,  in  his  discretion,  to  garnish 
either  all  or  any  of  those  debtors.  It  has  nevertheless 
been  held  that  he  must  summon  all  the  debtors.**''* 

2n4  Wollover  v.  Soulo.  30  Mioh.  481:  Hirth  v.  Pfoiflo.  42  :Mifli.  31; 
Warner  v.  Perkins.  8  Cush.  .518;  Pettes  v.  Spalding,  21  Vt.  66; 
Atkins  V.  Preseott.  10  N.  H.  120. 

sp-^  Atkins  v.  Proscott,  10  N.  IT.  123. 

266  Troadwoll  v.  Brown,  41  N.  II.  12;  Barker  v.  Garland,  22  X.  H. 
Vol.  I.— 64 


S  1G9    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        850 

But  the  decisions  to  this  effect  must,  upon  principle,  be 
regarded  as  unsound.  A  person  jointly  and  severally 
liable  with  others  may  be  jointly  or  severally  sued. 
His  obligation  is,  therefore,  not  changed,  nor  in  any 
respect  made  more  onerous,  by  charging  him  jointly  or 
severally  as  a  garnishee.  Hence,  where,  by  statute, 
partners  could  be  severally  sued  on  partnership  obliga- 
tions, it  was  determined  that  either  of  them  could  be 
garnished  for  a  debt  due  from  the  firni.-*^''  Whenever 
a  cause  of  action  of  a  personal  nature  accrues  to  two 
or  more  persons,  whether  as  joint  tenants,  copartners, 
tenants  in  common,  or  partners,  it  cannot,  against  the 
objection  of  the  defendant,  be  asserted  otherwise  than 
by  an  action  in  which  all  the  co-owners  are  joined.-*** 
In  other  words,  a  single  demand  cannot,  without  the 
assent  of  the  person  from  whom  it  is  owing,  be  split 
into  a  separate  demand  in  favor  of  each  of  the  obligees. 
If  this  cannot  be  done  in  favor  of  the  obligees  it  would 
seem  to  be  too  clear  for  argument  that  it  cannot  be 
done  in  favor  of  a  person  whose  rights  are  derived 
solely  from  one  of  the  obligees.  Upon  what  legal  prin- 
ciple can  it  be  affirmed  that  the  creditor's  creditor  can, 
by  garnishment,  acquire  a  right  or  a  remedy  to  which 
the  creditor  never  was  entitled,  and  which  he  was  in- 
competent to  transfer  by  any  voluntary  act?  The  gar- 
nishment might  well  be  allowed  to  subrogate  the  cred- 
itor's creditor  to  all  the  rights  and  remedies  of  the 
creditor.  This  would  entitle  him  to  take  the  place  of 
one  of  the  original  obligees,  and,  in  connection  with 
the  co-obligees,  to  assert  the  entire  demand  against  the 
obligor.     But  why  should  the  debtor  be  subjected  to 

103.    For  exception  to  this  rule  in  this  state,  see  Ladd  v.  Baker,  6 
Fost.  76. 

267  Travis  v.  Tartt,  8  Ala.  574;  Speak  v.  Kinsoy.  17  Tex.  301. 

268  Freeman  on  Cotenancy  and  Partition,  c.  15. 


8oi        PEUSONAL  rUOl'Lill  1   .SUl'Jl.t  i    10  < . AKM.^H.MKNT.     §  109 

two  recoveries — one  bj  the  creditor  whose  credit  has 
not  been  garnished,  and  the  otlier  by  jiidj^ment  in  the 
garnislimeut  proceedings?  Furthermore,  how  can  the 
respective  moieties  of  the  creditors  be  ascertained  and 
fixed,  in  a  proceeding  to  which  one  of  them  is  not  a 
party?  But  it  must  be  conceded  that,  in  a  majority  of 
the  cases  in  wiiich  this  question  has  been  involved,  it 
has  been  determined  in  opposition  to  principles  which 
appear  to  us  as  axiomatic.  Thus  in  Maine,^^  Massa- 
chusetts,''^''" and  ^Missouri,^'''^  it  has  been  held  that  a 
person  can  be  held  as  garnishee  upon  an  obligation  due 
to  the  defendant  and  a  person  not  a  party  to  the  suit; 
that  the  debt  will  be  severed  and  judgment  given  for 
such  part  as  the  defendant  w'ould  be  entitled  to  receive 
upon  the  collection  and  division  of  the  whole  debt. 
The  court  of  appeals  of  Indiana  has  also  decided,  where 
lands  owned  by  a  husband  and  wife  by  the  entireties 
have  been  sold,  and  part  of  the  purchase  price  remained 
in  the  hands  of  their  agent,  that  he  may  be  garnished 
on  account  of  the  husband's  interest  in  such  proceeds. 
In  making  this  decision  the  court  did  not,  however, 
consider  the  question  we  are  here  discussing.-'^  ^  The 
question  was  presented  and  necessarily  considered  in 
Moore  v.  Gilmore,  IG  Wash.  123,  58  Am.  St.  Kep.  20, 
and,  while  it  was  there  affirmed  that  a  debt  owine: 
jointly  to  the  defendant  in  execution  and  another  is 
subject  to  garnishment,  this  holding  was  qualified  by 
the  condition  that  the  other  parties  in  interest  be  in 
some  manner  brought  before  the  court  and  their  share 

2G9  Whitney  v.  Monroe.  19  Me.  42,  3G  Am.  Dec.  733. 

270  Thorndike  v.  De  Wolf.  G  Pick.  120.  It  may  l>o  that  this  c.aso 
Is  overruled  in  Hawes  v.  AValthani.  18  Pick.  4."1,  the  statement  of 
facts  not  being  sufficiently  clear,  in  the  last-named  case,  to  enable 
us  to  determine  its  precise  import. 

271  Miller  v.  Kichardson,  1  Mo.  310. 

«7iaFogelman  v.  Shively,  4  Ind.  App.  197,  51  Am.  St.  Rep.  213. 


§  169    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        852 

in  the  iudebtednoss  ascertained,  and,  hence,  that  the 
judgment  should  not  be  for  a  sum  exceeding  the  judg- 
ment debtor's  interest  in  the  debt.  The  court  consid- 
ered the  provision  of  section  150  of  the  Code  of  Civil 
Procedure  of  Washington,  declaring  that  a  court  may 
determine  every  controversy  between  persons  before  it 
when  it  can  be  done  without  prejudice  to  the  rights  of 
others,  or  by  saving  their  rights,  but  when  a  complete 
determination  cannot  be  had  without  the  presence  of 
other  parties,  the  court  shall  cause  them  to  be  brought 
in,  as  permitting  and  requiring  the  court,  when  a  gar- 
nishment is  served  on  a  person  owing  a  debt  to  the  de- 
fendant and  another,  to  bring  such  other  before  the 
court  and  to  adjudge  as  between  him  and  the  defend- 
ant to  what  portion  of  the  debt  each  is  entitled,  and 
to  render  judgment  against  the  garnishee  for  the  sum 
found  to  be  due  as  his  share  of  the  debt  in  question. 
This  accomplishes  a  very  desirable  result,  one  protect- 
ing the  interests  of  all  the  parties,  but  which,  however, 
may  ultimately  subject  the  garnishee  to  two  recoveries 
on  the  same  obligation,  one  in  favor  of  the  judgment 
creditor,  and  the  other  in  favor  of  the  other  creditor, 
whose  interest  has  not  been  garnished.  Doubtless,  a 
majority  of  the  states  have  in  their  codes  or  other  stat- 
utes provisions  substantially  similar  in  purport  to  that 
here  relied  upon.  AVe  had  supposed,  hoAvever,  that 
these  provisions  referred  to  the  controversy  between 
the  original  parties  to  the  action,  and  had  not  consid- 
ered that  they  extended  to  such  controversies  as  might 
arise  after  the  entry  of  the  final  judgment,  between 
the  plaintiff  and  third  persons,  because  of  their  claims 
to  property  which  he  sought  to  subject  to  his  execu- 
tion. If  the  construction  here  given  this  section  is 
correct,  it  must  be  possible  for  the  plaintiff,  when  an 


853        PERSONAL  Pltol'KKTY  SUIiJEL'T  TO  GAKNISUMEXT.     §  169 

iiuswNT  is  made  that  property  levied  upou  is  exempt 
from  exeeiition,  or  belouj^s  to  a  stranger  to  tlie  writ,  to 
<'all  the  <  laimants  before  the  court  and  have  it,  either 
snmmarily  or  in  such  other  manner  as  may  be  found 
to  confoi'm  to  the  spirit  of  the  statutes  relied  upon, 
determine  the  controversy  arising  between  them  and 
the  plaintiff  in  the  writ. 

In  New  Hampshire,  the  rule  is  clearly  in  accordance 
with  what  we  deem  the  true  principle,  and  i>rotects 
the  garnishee  from  the  splitting  of  demands  against 
him.^'-  The  same  conclusion  has  been  reached  in 
other  states,^'^^  and,  hence,  the  decisions  upon  the  sub- 
ject are  now  very  evenly  divided,  though  a  majority  of 
them  affirm  that  a  debt  in  which  the  defendant  in  exe- 
cution and  others  are  interested  cannot  be  reached  un- 
der a  writ  against  him,  unless  they  also  are  brought  be- 
fore the  court  and  their  interest  therein  is  determined, 
so  that,  after  a  judgment  for  his  share,  it  cannot  be  pos- 
sible for  other  persons  in  interest  to  maintain  actions 
against  the  garnishee  either  for  the  whole  demand  or 
for  some  part  in  excess  of  that  which  had  been  sup- 
posed to  be  due  from  him  to  them. 

With  respect  to  debts  due  to  a  partnership,  the  ma- 
jority of  the  decisions  deny  the  liability  of  the  gar- 
nishee, except  in  an  action  to  which  all  the  partners 
-are  parties  defendant.^''*     Several   of  these   decisions 

2T2  French  v.  Rogers.  16  N.  H.  177;  Hansom  v.  Davis,  19  N.  H.  133. 

2T3  Kennedy  v.  McClellan.  7P>  Mich.  ,")9S;  Markham  v.  Gohan.  42 
Mich.  74:  Ford  v.  Detroit  D.  Co..  r^O  MUh.  .^">.S:  Brown  v.  Collins.  IS 
R.  I.  243:  Fairchild  v,  Lauipson,  37  Vt.  407:  Braiin  v.  Davis.  0  Mani- 
toba Rep.  5.34. 

274  Winston  v.  Ewlnj;:.  1  Ala.  129:  .Tohnson  v.  Kinjr.  G  Humph.  233; 
Branch  v.  Adam,  51  Ga.  113:  Towne  v.  Loach,  ;i2  Vt.  747:  Fisk  v. 
Herrick,  6  Mass.  271:  Mobley  v.  Lonbat.  7  How.  (Miss.)  31S;  Uphan 
V.  Naylor.  9  Mass.  490;  Smith  v.  McMicken.  3  La.  Ann.  319:  Church 
V.  Knox,  2  Coun.  514;  Lyndon  v.  Gorham,  1  Gall.  3G7;  Kingsley  v. 


§  lODa    FERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.      854 

do  not  proceed  upon  tlie  principles  for  whicli  we  have 
here  contended,  but  on  the  more  questionable  ground 
that,  until  the  final  adjustment  of  the  partnership  busi- 
ness, it  cannot  be  knoAvn  whether  the  partner,  as  w^hose 
creditor  the  garnishee  is  summoned,  is  entitled  to  any 
portion  of  the  debt.  In  Maryland,-'^  Pennsylvania,^''* 
South  Carolina,^''''  and  Georgia,-'^  the  interest  of  a 
partner  in  a  debt  due  to  the  firm  can  be  reached  by 
garnishment. 

§  169  a.  Debts  Due  to  Some  Only  of  the  Judgment 
Debtors. — One  of  the  consequences  of  a  judgment 
against  two  or  more  persons  is  that  the  property  of 
all  or  either  may  be  levied  upon  and  sold  for  the  pur- 
pose of  satisfying  the  judgment.  Satisfaction  need 
not  be  sought  exclusively  out  of  joint  property,  nor 
exclusively  out  of  separate  property;  but  both  joint  and 
separate  property  may  doubtless  be  seized  at  the  same 
time  and  sold  under  the  execution.  We  see  no  reason 
w4iy  this  principle  should  not  extend  to  proceedings  by 
garnishment,  and  the  creditor  be  permitted  to  garnish 
debts  due  to  all  of  the  debtors,  or  to  any  one  of  them, 
or  to  two  or  more  of  them,  at  the  same  time.^''**     In 

Missouri  F.  Ins.  Co.,  14  Mo.  467;  Biilfmch  v.  Winchenbach.  3  Allen, 
161;  Williams  v.  Gage,  49  Miss.  777;  Crescent  I.  Co.  v.  Bear,  23  Fla. 
50,  11  Am..  St.  Rep.  331;  Sheedy  v.  Second  N.  B..  62  Mo.  18,  21  Am. 
Rep.  407;  Pullis  v.  Fox,  37  Mo.  App.  592;  Myers  v.  Smith,  29  Oh.  St. 
120;  Gale  v.  Barnes.  66  N.  H.  183;  McNeal  P.  Co.  v.  luman.  69  Vt. 
181;  Bartlett  v.  Woodward,  46  Vt.  100;  Willard  v.  Wing,  70  Vt.  123. 
67  Am.  St.  Rep.  657;  Rich  v.  Solari,  6  Mackey,  371;  Chicago  etc. 
R.  R.  Co.  V.  Scott,  174  111.  413. 

275  Wallace  v.  Patterson,  2  Har.  &  McH.  4G3. 

276  McCarty  v.  Emlen,  2  Dall.  277;  2  Yeates.  190. 

277  Schatzill  V.  Bolton,  2  McGord,  478,  13  Am.  Dec.  748;  Chatzet 
V.  Bolton,  3  McCord,  33. 

278  Branch  v.  Adams.  51  Ga.  113;  Anderson  v.  Chenney,  51  Ga,  372, 

279  Thompson  v.  Taylor,13  Me.  420;  Caignett  v.  Gilband.  2  Yeates 


8JJ      PERSONAL  PUOrERTY  SUBJECT  TO  CARNISHMENT.     §  lO'J* 

Mi(hij;an,  however,  the  rule  is  otherwise.  In  that 
state,  under  a  juilguient  against  several,  none  but  those 
^\\\^)  jointly  owe  them  all  can  be  <];arnishe(l; -^**  nor 
under  a  judgment  against  one  person  ran  two  or  more 
persons  be  united  in  one  garnishment,  where  their  lia- 
bility to  him  is  several.-**^  No  other  reason  is  given 
for  these  remarkable  decisions  than  "that  garnishment 
proceedings  are  purely  statutory,  and  cannot  be  ex- 
tended by  construction." 

In  a  later  case  in  another  state,  the  further  reasons 
are  given  that  garnishment  cannot  be  sustained  except 
when  the  defendants  in  execution  could  themselves 
have  sustained  an  action  against  the  garnishee,  and 
that  the  judgment  against  him  must  be  for  the  whole 
amount  of  the  debt  due,  whether  or  not  it  is  in  excess 
of  the  amount  due  under  the  writ  by  virtue  of  which  the 
garnishment  was  made,  and  that  such  excess  must  be 
paid  to  the  defendants  in  execution.-^-  If  these  as- 
sumptions are  well  founded,  then  garnishment  cannot 
be  sustained  where  there  are  two  or  more  defendants 
in  execution,  unless  the  garnishee  is  indebted  to  all 
of  them,  and  though,  by  an  execution  against  two  or 
more  persons,  it  is  proper  to  levy  upon  property  of 
either,  whether  they  are  partners  or  not,  yet  no  debtor 
of  either  can  be  garnished  unless  he  owes  them  all.^** 
It  is  true  that  garnishment  is  a  statutory  proceeding, 
restricted  to  the  debts  designated  in  the  statute,  and 

3.^;  Stone  v.  Denn.  5  N.  H.  502;  Parker  v.  Guillow.  10  N.  II.  103; 
Locket  V.  Child,  11  Ala.  040. 

280  Ford  V.  Detroit  Dry  D.  Co.,  50  Micb.  358;  Farwell  v.  Cham- 
bers. 02  Mich.  310. 

281  Ball  V.  Younsr,  52  Mich.  476. 

2S2  Webster  v.  Steele,  75  111.  544;  Bank  of  America  v.  Indiana  B. 
Co.,  114  111.  483. 
283  Siegel  V.  Schueck,  107  111.  522,  59  Am.  St.  Pvep.  309. 


§  170    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        856 

debts  aiiparenth'  within  the  statute  may  be  impliedly 
excliifled  by  the  rules  of  practice  required  by  the  stat- 
ute, and,  from  the  nature  of  the  debts,  inapplicable  to 
them.  The  object,  however,  of  garnishment  is  to  give 
the  plaintilt'  in  execution  substantially  the  same  rem- 
edy against  the  choses  in  action  of  his  debtor  or  debtors 
that  he  has  against  tangible  property.  An  execution 
against  several  defendants,  whether  partners  or  not,  is 
joint  and  several  in  its  nature.  It  authorizes  a  levy 
upon  the  property  of  one  or  all  of  the  defendants,  or 
of  any  number  less  than  all.  The  right  acquired  by 
garnishment  should  therefore  be  construed  to  be  the 
right  to  reach  a  debt  due  to  the  defendants  in  execu- 
tion or  to  any  of  them.^*^* 

If  one  of  several  judgment  debtors  happens  to  be  in- 
debted to  the  others,  he  cannot  be  garnished  on  account 
of  such  debt,  because  he  is  not  a  third  person,  within 
the  meaning  of  the  statutes  authoriziug  third  persons 
to  be  garnished.  The  denial  of  the  right  to  garnish 
him  might,  with  equal  propriety,  be  sustained  on  the 
ground  that  such  garnishment  is  a  vain  act.  The  only 
result  which  could  follow  from  its  allowance  would 
be  a  judgment  against  such  debtor  for  the  amount  of 
the  debt  due  from  him  to  his  co-judgment  debtors. 
But  the  plaintilf  has  already  a  judgment  against  him; 
and,  w^ith  like  diligence,  may  make  one  judgment  as 
efficient  as  two,  because  the  second  judgment  would 
not  entitle  the  judgment  creditor  to  seize  any  property 
not  equally  open  to  levy  under  the  first. 

§  170.  Assignment  of  the  Debt  Preceding  the  Gar- 
nishment.— Neither  the  law  of  garnishment,  nor  that 

284  Locket  V.  Cliilfl,  11  Ala.  640;  Thompson  v.  Taylor.  13  ISfe.  420; 
Stone  V.  Dean.  5  N.  II.  5G2;  Parker  v.  Guillow,  10  N.  H.  103; 
Caignett  v.  Gilband,  2  Yeates,  35. 


«57        PERSONAL  I'llOPERTY  SUBJliCT  TU  (;AKNI>HMKNT.     §  170 

applk-able  to  [u-oc('('(linjj;s  sui)iil<Mii<iit:iI  to  cxciuticjii, 
will  be  permitted  to  interfere  with  lli«*  ri-hl  of  u 
creditor  to  assijiii  any  debt  wliich  may  h<diir  to  him."^" 
The  general  rule  with  respect  to  an  oxcMUtion  or  judg- 
ment lien,  or  thc^  lien  acquired  by  the  b'vy  of  an  exe- 
cution or  attachment,  is,  tliat  such  lien  attai-hes  to  the 
real  rather  than  the  apparent  interest  of  tiie  defend- 
ant, and  is,  therefore,  subject  to  alienations  or  encum- 
brances previously  made  by  him,  whether  known  to 
the  judgment  creditor,  or  not.  This  rule  is  applicable 
to  proceedings  by  garnishment.  The  lien  ae<iuired 
thereby  is  subordinate  to  any  prior  assignment  made 
by  the  defendant.-^*^ 

A  very  interesting  question,  and  one  but  little  con- 
sidered, is,  upon  whom  does  the  burden  of  proof  rest 
where  the  garnishment  and  the  assignment  have  oc- 
-curred  at  about  the  same  time.  Probably,  the  answer 
■depends  upon  the  attitude  of  the  party  presenting  the 
question.  If  he  is  an  actor  in  the  proceeding,  he  must 
assume  the  burden  of  proof  and  satisfy  the  court  or 
jury  by  a  preponderance  of  the  evidence.  Hence,  in 
Arkansas,  where  an  assignee  intervened  and  proved  an 
assignment  made  on  the  day  of  the  garnishment,  but 
offered  no  evidence  to  show  which  was  first  in  point  of 
time,  it  was  held  that  he  had  not  establishe(l  his  claim, 
because  the  burden  of  proof  was  upon  him  to  show  that 
his  assignment  preceded  the  garnishment."*'' 

2S5  Cairo  &  St.  L.  R.  R.  v.  KillcnbtM-jr.  82  111.  20.".  In  Sandidse 
v.  Graves.  1  Pat.  «&;  H.  101.  it  was  lioltl  that  an  assi^ninent  of  prior 
date  to  a  sarnisluuent  would  l)e  treated  as  paramount.  th<>u<rh  there 
was  no  proof  of  its  delivery. 

286  Willing  V.  Miller,  15  Cal.  38;  Dressor  v.  Meford.  06  111.  3S0: 
Howe  V.  Jones,  57  la.  130;  Ives  v.  Addison.  30  Kan.  172;  Noble  v. 
Thompson  O.  Co..  79  Pa.  St.  3.j4.  21  Am.  lvei>.  (iti;  Northani  v.  Cart- 
wrisrht.  10  R.  I.  19;  Cottrell  v.  Cloud  tTinn.  Ch.  App.i.  42  S.  W.  G". 

2S7  Bergman  v.  Sells,  39  Ark.  97. 


§  170    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        853 

All  that   the  law  requires  for  the  complete  protec- 
tion of  the  assignee  is,  that  the  transfer  to  him  shall 
have  been  made  in  good  faith,  and  without  any  intent 
to  hinder,  delay,  or  defraud  creditors,-^*^  and  that  he 
shall    not   be  guilty  of  such  laches    as   result  in  the 
debtor's  paying  the  debt,  without  notice  of  the  assign- 
ment, either  to  the  original  creditor  or  to  the  creditor's 
creditor  proceeding  by  garnishment.-**'-*     For,  if  an  as- 
signment of  a  chose  in  action  was  made  for  the  pur- 
pose of  hindering,  delaying,  or  defrauding  the  credi- 
tors of  the  debtor,  it  is  void  as  against  them,  and 
they  may  garnish  the  debtor  as  before  it  was  made,-'**"" 
and,  though  it  is  valid,  it  is  the  duty  of  the  assignee 
to  give  such  notice  to  the  debtor  as  will  apprise  him 
that  another  person  than  the  original  creditor  has  be- 
come entitled    to  the  perforjnance  of   the  obligation, 
and  will    enable    him  to  present   the    transfer  as  an 
answer  to  any  claim  made  by  such  original  creditor  or 
by  any  creditor  or  assignee  of  his. 

The  assignee  of  a  nonnegotiable  demand,  wishing 
to  protect  it  from  garnishment  under  a  writ  against 
his  assignor,  must  give  the  debtor  notice  of  the  as- 
signment. In  the  absence  of  such  notice,  the  debtor 
must  necessarily  answer  that  he  owes  the  original 
creditor,  and  judgment  must  be  entered  against  him 
for  the  amount  of  the  debt.  After  his  liability  has 
become  thus  fixed,  owing  to  the  laches  of  the  assignee 
in  not  giving  notice  of  the  assignment,  the  latter  must, 

288  The  assignment  must  be  made  in  good  faith,  or  it  will  be  dis- 
regarded. Giddings  v.  Coleman.  12  N.  H.  153;  Hooper  v.  Hills,  ?> 
Pick.  435;  Knight  v.  Gorliam,- 4  Me.  492. 

289  Drake  on  Attachment,  sec.  G02;  McGuire  v.  Pitts,  42  la.  535; 
Tracy  v.  McCarty,  12  R.  I.  108. 

290  Stevens  v.  Dillman,  86  111.  233:  Dosgott  v.  St.  lionis  etc.  Co.^ 
19  Mo.  201;  Curtis  v.  Steever,  30  N.  J.  L.  304. 


b5J       PEUSONAL  rUOL'ElCTY  SUHJECT  TO  GARNISHMENT.     ^  170 

upon  priuciples  of  natural  justice,  be  lield  to  be  es- 
topped from  asserting  his  assignment.-"'  The  assign- 
ment need  not  be  absolute.  It  may  be  made  for  tlie  pur- 
pose of  securing  a  debt  due  from  tlie  assignor  to  the  as- 
signee; and,  if  so,  the  garnishment  can  ea'ect  nothing 
beyond  the  surplus  which  may  remain  after  the  pay- 
ment of  the  debt  thus  secured.^'*' 

By  the   common  law,  the   assignment   of   choses  in 
action  was  not  recognized,  though   the   assignee  was 
generally  permitted  t,o  make  the  assignment  productive 
by  conducting  an  action  in  the  name  of  the  assignor. 
But  even  under  the  systems  of  jurisprudence,  in  which 
an  assignment  is  not  recognized  at  law,  it  is  enforced 
against  a  garnishment.-'^^     In    otlier  words,  whether 
an  assignment  is  recognized  at  law  or  not,  a  garnish- 
ment is  subordinate  to  all  pre-existing   equitable  as- 
signments.  It  is  not  essential   that  the   assignment 
should  be  perfect  at  law\     It  is  sufficient  if  it  is  a  good 
equitable  assignment;  ^**^   and  it  is  a  good   equitable 
assignment  whenever,  by  its  terms,  the  person  to  whom 
an  obligation  is  due  authorizes  the  payment  thereof 
to  another,  either  for  his  own  use,  or  for  that  of  some 
other  person,  or  authorizes  anyone  to  receive  or  hold 
moneys  and  to  apply  them  to  any  specific  purpose  other 
than  for  the  use  or  benefit  of  the  assignor.^^^ 

201  Walters  v.  Insurance  Co.,  1  Iowa,  404,  63  Am.  Dec.  451;  Mc- 
Cold  V.  Beatty,  12  Iowa,  299;  "Woodbridge  v.  rerkins,  3  Day,  364; 
Dodd  V.  Brott,  1  Minn.  270.  G6  Am.  Dec.  541. 

292  Freetown  v.  Fish,  123  Mass.  355. 

203  Norton  v.  P.  Ins.  Co.,  Ill  Mass.  532. 

204  Matlieson  v.  Rutledge,  12  Rich.  41;  Byar  v.  Criffin.  31  Miss. 
603;  Smith  v.  Sterritt,  24  Mo.  2G1;  Drake  on  Attachment,  c.  31 
Burrows  v.  Glover,  106  Mass.  324;  Dressor  v.  McCord.  96  111.  389 
Insurance  Co.  of  Pennsylvania  v.  Phoenix  Ins.  Co.,  71  Pa.  St.  31 
Claflin  V.  Kimball,  52  Vt.  6. 

298  Harrison  v.  Louisville  &  N.  Tl.  Co.  (\\n.).  2:1  So.  790;  Boardsley 
T.  Beardsley,  23  111.  App.  317;  Metcalf  v.  Kincaid.  S7  la.  443,  43  Am. 


§  170    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        860 

"In  order  to  infer  an  equitable  assignment,  such  facts 
and  circumstances  must  appear  as  would  not  only  raise 
an  equity  between  the  assignor  and  assignee,  but  show 
that  the  parties  contemplated  an  immediate  cliange  of 
ownership  with  respect  to  the  particular  fund  in  ques- 
tion, not  a  change  of  ownership  when  the  fund  should 
be  collected  or  realized,  but  at  the  time  of  the  transac- 
tion relied  upon  to  constitute  the  assignment."  *^  An 
equitable  assignment  may  be  made  by  parol,""'  or  by 
mere  agreement  between  the  debtor  and  creditor  that 
the  debt  shall  be  jjaid  to  some  third  person.""* 

No  doubt,  an  order  made  by  the  creditor,  directing 
the  debtor  to  pay  the  debt  to  some  third  person,  is,  after 
its  acceptance,  a  good  and  sufficient  assignment  of  the 
amount  therein  directed  to  be  paid.^""  And,  though 
this  has  sometimes  been  doubted,"*^**  the  majority  of 
the  authorities  show  that  its  acceptance  is  not  essen- 
tial to  enable  such  an  order  to  withdraw  funds  from 
the  reach  of  the  creditors  of  the  drawer."*^^^  As  a  gen- 
«'ral  rule,  it  seems  to  be  conceded  that  an  assignment 

St.  Rep.  391;  Rock  Island  etc.  Co.  v.  Equitable  T.  &  I.  Co..  .54  Kan. 
124;  Dawson  v.  Iron  Range  etc.  Co..  97  INIich.  ?,^:  Merchants  & 
M.  N.  B.  V.  Barnes.  IS  Mont.  335,  5G  Am.  St.  Rep.  ,596. 

296  .Tones  v.  Glover,  93  Ga.  484. 

297  Norton  v.  P.  Ins.  Co.,  Ill  Mass.  532;  Littlelield  v.  Smith,  17  Me. 
327;  Porter  v.  Bullard,  26  Me.  448. 

29S  Black  V.  Paul,  10  Mo.  103,  45  Am.  Dec.  3.53. 

299  Dibble  v.  Gaston,  R.  M.  Charlt.  444;  Brazier  v.  Chappell,  2 
Brev.  107;  Legro  v.  Staples,  16  Me.  252;  I.anikin  v.  Phillips.  9  Port. 
98;  Iloadloy  v.  Caywood,  40  Ind.  239;  Colt  v.  Ives.  31  Conn.  25; 
Adams  v.  Robinson,  1  Pick.  461;  Davis  v.  Taylor,  4  Mart.,  N.  S.,  134. 

300  Sands  v.  Matthews,  27  Ala.  399;  Clodfelter  v.  Cox.  1  Sueed,  330, 
00  Am.  Dec.  157;  Miller  v.  OBaunon,  4  Lea,  398;  Flickey  v.  Loney, 
4  Baxt.  169;  Ward  v.  Morrison,  25  Vt.  593;  Barron  v.  Porter,  44  Vt. 
587. 

301  Merchants  &  M.  N.  B.  v.  Barnes,  IS  Mont.  335.  .56  Am.  St.  Rep, 
586;  Nesmith  v.  Drum,  8  Watts  &  S.  9;  United  States  v.  Vaughan, 
3  Binn.  394;  Pellman  v.  Hart,  1  Pa.  St.  263. 


861        PERSONAL  PllOl'KRTY  SiUliJEC'T  TO  GAIlNI.SHMKNT.     §  170 

is  operative,  even  before  notice  is  given  to  the  gar- 
nisliee;  ^**'  and  that,  if  lie  receives  sucli  notice,  even 
after  the  service  of  the  writ  upon  him,  lie  not  only 
may,  but  he  must,  if  he  still  has  an  oi)portunity  to 
do  so,  present  the  fact  of  the  assignment  as  a  defense 
to  the  garnishment  proceedings.^"^ 

While  there  is  no  doubt  that  an  order  or  draft  for 
the  whole  of  a  debt  or  fund,  whether  accepted  or  not, 
takes  precedence  over  a  subsequent  garnishment,^"'*  a 
more  dillicult  question  arises  when  the  order  or  draft 
is  for  a  part  only  of  such  debt  or  fund.  A  party  en- 
titled to  a  debt  has  no  right  to  make  a  partial  assign- 
ment thereof,  and  such  assignment,  if  attempted,  is  in- 
operative until  the  debtor  assents  thereto.     Hence,  it 

302  SchoolfieUl  V.  Hirsh,  71  Miss.  55,  42  Am.  St.  Rep.  450;  Mer- 
chants' &  M.  N.  B.  V.  Barnes,  18  Mont.  335,  5G  Am.  St.  Rep.  586; 
Wakefield  v.  Martin,  3  Mass.  558;  Smith  v.  Clarke,  9  Iowa,  241; 
Walling  V.  Miller,  15  Cal.  38;  McCubbin  v.  Atchison.  12  Kan.  166; 
Smith  V.  Sterritt,  24  Mo.  262;  Smith  v.  Blatchford,  2  Ind.  184.  This 
rule  has  been  denied  in  several  states.  Judah  v.  Judd.  5  Day,  534; 
Woodbridge  v.  Perkins,  3  Day,  3G4;  Hart  v.  Forbes,  60  Miss.  745; 
Robertson  v.  Baker,  10  Lea,  300. 

803  Smoot  V.  Eslava,  23  Ala.  650,  58  Am.  Dec.  310;  Dawson  v. 
Jones.  2  Iloust.  412;  Larrabee  v.  Knight,  09  Me.  310;  Casey  v.  Davis, 
100  ]\Liss.  124;  Tabor  v.  Van  Yranken,  39  Mich.  793;  Dodd  v.  Brott, 
1  Minn.  270;  66  Am.  Dec.  541;  Smith  v.  Ainscow,  11  Neb.  476; 
Greentrce  v.  Rosenstock,  61  N.  Y.  583;  Kimbrough  v.  Davis,  34  Ala. 
583;  Adams  v.  Filer,  7  WMs.  306,  73  Am.  Dec.  410;  Greentree  v. 
Rosenstock,  34  N.  Y.  Sup.  Ct.  505;  Crayton  v.  Clark.  11  Ala.  787; 
Foster  v.  White,  9  Port.  221;  Roy  v.  Baucus,  43  Barb.  310;  Gibson 
V.  Haggarty.  15  Abb.  Pr.  406;  Large  v.  Moore,  17  Iowa.  258;  Funk- 
houser  v.  IIow,  24  Mo.  44;  Leahey  v.  Dugdale,  41  Mo.  517;  Oldham 
V.  Ledbetter,  1  How.  (Miss.)  43,  26  Am.  Dec.  690;  Lyman  v.  Cart- 
wright,  3  E.  D.  Smith,  117;  Page  v.  Thompson,  43  N.  II.  373. 

304  Robbins  v.  Bacon,  3  Grceul.  346;  Bank  of  Commerce  v.  Bogy, 
44  Mo.  13.  100  Am.  Dec.  247;  Brady  v.  Chadbourno.  C;8  Minn.  17; 
Nimocks  v.  Woody,  97  N.  C.  1,  2  Am.  St.  Rep.  268;  Hemphill  v. 
Yerkos.  132  Pa.  St.  545,  19  Am.  St.  Rep.  6U7;  Loe  v.  Robinson,  15 
B.  I.  309. 


§  170    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        862 

has  been  held  that  such  an  order  or  draft,  until  ac- 
cepted by  the  debtor,  leaves  the  entire  debt  subject  to 
garnishment,'*®* 

Upon  this  subject,  however,  the  more  recent  au- 
thorities establish  a  very  material  distinction  between 
a  check  or  order  not  drawn  upon  any  particular  or 
designated  fund  and  one  which,  by  its  terms,  is  drawn 
upon  such  a  fund  and  evinces  an  intent  to  assign  some 
part  thereof.  Orders  or  checks  of  the  first  class  are 
inoperative  prior  to  their  acceptance,  and,  hence,  leave 
the  entire  fund  subject  to  garnishment  as  before.^*** 
A  part  of  the  fund  may  doubtless  be  reached  by  gar- 
nishment, where  the  claim  of  the  garnishing  creditor 
is  less  than  the  whole  thereof,  and  it  seems  absurd  to 
maintain  that  a  debtor  cannot  concede  to  his  creditor 
by  a  voluntary  assignment  what  the  latter  might  co- 
erce by  attachment  or  execution.  Furthermore,  it  is 
now  so  well  established  as  to  be  substantially  beyond 
controversy,  that  an  assignment  of  a  part  of  a  specific 
fund,  though  not  valid  or  enforceable  at  law,  is  good 
in  equity,  and  there  capable  of  assertion.  Such  being 
the  case,  it  must  necessarily  follow  that  where  an  as- 
signment is  made  of  a  part  of  a  specific  fund,  and 
which  is,  hence,  enforceable  in  equity,  that  the  part  of 
the  fund  so  assigned  can  no  longer  be  subject  to  gar- 
nishment as  the  debt  of  the  assignor.^**'' 

805  Gibson  t.  Cooke,  20  Pick.  15,  32  Am.  Dec.  194;  Mandeville  v. 
Welch,  5  Wheat.  277. 

306  Cashman  v.  Harrison,  90  Cal.  207;  Baer  v.  English.  84  Ga.  403, 
20  Am.  St.  Rep.  372;  Bullard  v.  Randall.  1  Gray,  60C>.  61  Am.  Dec. 
4.33;  Holbrook  v.  Payne,  151  Mass.  3S3,  21  Am.  St.  Rep.  45G;  Lewis 
V.  Traders  Bank,  30  Minn.  1.34;  Commonwealth  v.  American  L.  I. 
Co.,  102  Pa.  St.  586,  42  Am.  St.  Rep.  844. 

307  Chamberlin  v.  Gilman.  10  Colo.  94;  Phillipps  v.  Edsall,  127  111. 
535;  Kingsbury  v.  Burrill,  151  Mass.  199;  ExohnnRo  Bank  v.  McLoon, 
73  Me.  498;  Home  v.  Steam  M.  Co.,  79  Me.  203;  IlaU  v.  Flanders, 


803       PERSONAL  PROPERTY  .SUBJECT  TO  GAUNISIIMENT.     g  170 

A  check  or  draft  upon  a  bank  dilTcrs  in  principle 
from  an  order  ordinarily  given  by  a  creditor  upon  his 
debtor  to  pay  to  a  third  person  a  part  of  a  demand 
owing  from  a  debtor  in  this,  that,  while  as  between  a 
creditor  and  debtor  it  is  not  usual  for  the  latter  to 
submit  to  a  partial  assignment  of  his  demand,  this  is 
precisely  the  feature  distinguishing  the  relation  of  a 
bank  and  its  depositors.  The  drawing  of  a  check  or  a 
draft  for  an  entire  deposit  is  unusual,  and  a  bank,  ac- 
cording to  the  usual  course  of  business,  owes  its  de- 
positor the  duty  of  making  partial  payments  from  his 
funds  in  its  hands  upon  checks  drawn  by  him,  or,  in 
other  words,  of  respecting  partial  assignments  of  the 
fund.  Nevertheless,  the  English  courts,  with  unan- 
imity, and  the  American,  by  a  majority,  affirm  that  a 
check  drawn  by  a  depositor  against  his  funds  on  de- 
posit in  the  bank  does  not  operate,  prior  to  acceptance, 
as  an  equitable  assignment  of  any  part  of  the  fund, 
and,  hence,  prior  to  that  time,  the  drawing  of  the  check 
does  not  prevent  an  effective  garnishment,  and  the 
rights  of  the  garnishee  are  paramount  to  those  of  the 
checkholder  whose  check  has  not  been  accepted  nor 
presented.^**^    These  decisions  rest  upon  the  assump- 

83  Me.  242;  Brown  v.  Dunn.  50  N.  J.  L.  Ill;  McDauiel  v.  Maxwell, 
21  Or.  202.  28  Am.  St.  Rep.  740;  Clark  v.  CTillespio.  70  Tex.  .^.1.3. 

308  Cohen  v.  Hale.  L.  R.  3  Q.  B.  Div.  371;  National  etc.  Bank,  v. 
Miller,  77  Ala.  168.  54  Am.  Rep.  50;  Colorado  N.  B.  v.  Boettcher,  5 
Colo.  185,  40  Am.  Rep.  142;  Boettcher  v.  Colorado  N.  B.,  15  Colo.  16; 
Harrison  v,  Wright,  100  Ind.  515,  50  Am.  Kep.  SOo;  First  N.  B.  r. 
Dubuque  etc.  Co.,  52  la.  378.  35  Am.  Rep.  280;  Carr  v.  National  Bank. 
107  Mass.  45.  0  Am.  Rep.  6;  Oranimel  v.  Carmer.  .55  Mieh.  201.  54 
Am.  Rep.  3G3;  Molntyre  v.  Farmers  &  M.  Bank.  115  Mich.  255: 
Dickinson  v.  Coates,  79  Mo.  250,  49  Am.  Rep.  228;  Coates  v. 
Doran,  83  Mo.  337;  Bush  v.  Foot,  .58  Miss.  5.  .'".8  Am.  Rep.  310; 
Crcveling  v.  Bloomsbury  N.  B..  4G  N.  .T.  L.  255,  50  Am.  Rep.  417; 
Risley  v.  Phoenix  Bank,  83  N.  Y.  318.  .38  Am.  Rep.  421;  O'Connor  v. 
Mechanics'  Bank,    124    N.  Y.   324;   Veets  v.  Union  N.  B.,  101  N,  Y. 


§  170    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        86* 

tiou,  first,  that  by  the  drawiug  of  the  check  the  drawer 
does  not  part  absolutely  with  his  dominion  over  the 
fund  drawn  against,  but  may,  before  the  actual  pre- 
sentment or  acceptance  of  the  check,  countermand  his- 
order  by  directing  the  bank  not  to  make  payment;  and,, 
second,  that  the  bank  owes  no  duty  to  the  payee  of  the 
check,  and  may  refuse  to  accept  it  without  incurring 
any  liability  to  such  payee,  and,  hence,  that  prior  to 
such  acceptance,  or  until  payment  is  made  of  the  check, 
the  relations  between  the  bank  and  the  drawer  re- 
main unchanged.  Where  these  reasons  do  not  exist, 
the  rule  to  which  we  have  referred  must  be  inappli- 
cable. The  circumstances  attending  the  giving  of  the 
check  and  its  receipt  by  the  payee  may  be  such  as  to 
show  that  the  drawer  does  not  retain  any  right  to  stop 
its  payment,  as  where  it  is  accepted  as  payment  of  the 
sum  for  which  it  is  given.  If,  from  an  agreement  that 
a  check  shall  be  received  absolutely  as  payment,  or 
from  any  circumstance,  it  appears  that  the  amount 
represented  by  the  check  has,  as  between  the  parties, 
become  the  property  of  the  payee,  it  cannot,  we  think, 
any  longer  be  garnished  under  a  writ  against  the 
drawer,  because,  by  the  garnishment,  the  judgment 
creditor  cannot  acquire  any  right  which  his  debtor  has 
lost.^**^    Several  of  the  courts  in  the  United  States  have 

563,  54  Am.  Rep.  743;  Cincinnati  R.  R.  Co.  v.  Bank,  54  Ohio  St.  GO, 
56  Am.  St.  Rep.  700;  Bank  y.  Windisch-Mulhauser  B.  Co.,  50  Ohio  St. 
151.  40  Am.  St.  Rep.  6G0:  Saylor  v.  Bnshonc:.  lOO  Pa.  St.  23.  45  Am. 
Rep.  353;  First  N.  B.  v.  Shoemaker,  117  Pa.  St.  94,  2  Am.  St.  Rep. 
649;  Pickle  v.  Muse,  88  Tenn.  380,  17  Am.  St.  Rep.  900;  Akin  v.  Jones, 
93  Tenn.  353,  42  Am.  St.  Rep.  921;  Laclede  Bank  v.  Schnler.  120 
U.  S.  511;  Florence  M.  Co.  v.  Brown,  124  U.  S.  391;  Note  to  Hemphill 
V.  Yerkes,  19  Am.  St.  Rep.  610. 

309  Barnard  v.  Graves.  10  Pick.  41;  Cusliman  v.  Libbey,  15  Gray, 
358:  Getchell  v.  Chase.  124  INLass.  366;  Throop  G.  C.  Co.  v.  Smith, 
110  N.  Y.  83;  National  Park  Bank  v.  Levy,  17  R.  h  746. 


SG5        PERSONAL  I'ROPEUTY  SUBJECT  TO  OARNISIIMENT.     §   170 

coiH-lndcd  that  a  bank  upon  whioh  a  check  is  drawn 
owes  the  duty  to  the  payee  to  make  payment  thereof, 
if,  when  it  is  presented,  it  has  on  hand  funds  of  the 
drawer  sufficient  therefor.  ^Yhere  these  decisions  pre- 
vail, it  is  obvious  that  the  givin*^  of  a  check  against  a 
bank  operates  as  an  equitable  assignment  of  so  much 
of  the  funds  of  the  drawer  as  are  then  on  deposit  in 
such  bank,  and,  hence,  that  the  rights  of  the  payee 
of  such  check  cannot  be  defeated  by  a  subsequent  gar- 
nishment of  the  drawer,  unless  the  payee,  by  his  inex- 
cusable laches,  permits  moneys  to  be  paid  by  the  bank 
under  such  garnishment  prior  to  its  receiving  notice 
of  the  check.^*® 

"An  assignment  of  a  chose  in  action  need  not  be  by 
any  particular  form  of  words  or  particular  form  of  in- 
strument. Any  binding  appropriation  of  it  to  a  par- 
ticular use,  by  any  writing  whatever,  is  an  assign- 
ment, or,  what  is  the  same,  a  transfer  of  the  ownership. 
And  where  it  appears  that  a  debt  due  from  a  trustee 
to  the  defendant  has  been  equitably  assigned,  the  court 
will  take  cognizance  of  the  assignment,  and  protect 
the  rights  of  the  assignee.  For,  as  the  defendant  has 
parted  with  his  interest  in  the  debt,  and  can  no  longer 
maintain  an  action  for  it  against  the  trustee  for  his 
own  benefit,  and,  as  the  plaintiff  can  acquire  no  greater 
interest  in  the  debt  than  the    defendant    had  at   the 

810  Chicago  Ins.  Oo.  v.  Stanford,  28  111.  168.  SI  Am.  Dec.  270; 
Union  N.  B.  v.  Oceana  County  Bank,  SO  111.  210,  22  Am.  Rep.  1S5; 
Bank  of  America  v.  Indi.nna  B.  Co.,  114  111.  4S3;  Metropolitan  N.  B.  v. 
Jones.  137  111.  634,  31  Am.  St.  Rep.  403;  Lester  v.  Given.  8  Bush. 
357;  Weinstock  v.  Bellwood,  12  Bush.  139;  Gordon  v.  Miehler,  34 
La.  Ann.  608;  Fonner  v.  Smith,  31  Neb.  107,  28  Am.  St.  Rep.  510; 
Fogarties  v.  State  Bank,  12  Rich.  518,  78  Am.  Dec.  468;  Simmons 
H.  Co.  V.  Bank  of  Greenwood,  41  S.  C.  177,  44  Am.  St.  Rep.  700; 
t  Pease  v.  Landauer,  03  Wis.  20,  53  Am.  Rep.  247. 
Vou  I.— 55 


§  170     PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        86ii 

time  of  the  service  of  the  trustee  process,  it  results 
that  the  trustee  cannot  be  charged  for  that  which  he 
has  equitably  ceased  to  owe  the  defendant  and  owes 
to  another  person."  ^^^ 

If,  after  notice  of  an  assignment,  the  debtor  pays  the 
debt,  either  to  the  origiutil  creditor,  or  to  the  creditor's 
creditor,  proceeding  by  garnishment,  such  payment 
constitutes  no  defense  to  a  subsequent  action  brought 
by  the  assignee.^*^  The  fact  that  the  debtor  has  paid 
money  under  a  garnishment  is  no  defense  to  an  action 
brought  by  the  assignee,  unless  it  further  appears  that 
such  payment  was  made  without  notice  of  the  assign- 
ment,^*^ 

Even  if  the  debtor  should  plead  the  assignment 
as  a  defense  to  the  garnishment,  and  such  plea,  on  the 
trial  thereof,  should  be  determined  against  the  debtor, 
this  determination  is  not  binding  upon  the  assignee; 
and  the  assignee  may,  notwithstanding  judgment 
against  the  debtor  and  the  enforcement  thereof,  assert 
his  rights  as  assignee  in  an  action  b}"  him  against  the 
debtor.^**  It  is,  therefore,  incumbent  upon  the  gar- 
nishee, when  informed  of  a  claim  that  the  debt  has 
been  assigned,  to  take  some  measures  to  bring  the  as- 
signee before  the  court,  to  the  end  that  he  may  be  a 
party  to,  and  bound  by,  any  judgment  that  may  be 
entered  therein.^***    The  statutes  of  some  of  the  states 

311  Conway  v.  Cutting,  51  N.  H.  407;  Macklin  v.  Kinealy,  141  Mo. 
113. 

312  Merchants  M.  N.  B.  v.  Barnes,  18  Mont  335,  56  Am.  St.  Rep. 
58G. 

313  Woodlawn  v.  Purvis,  108  Cal.  511;  Kitzinger  v.  Beck,  4  Colo. 
App.  206. 

3i4McKniRht  v.  Knisely,  25  Ind.  336,  87  Am.  Doc.  364;  Gates 
T.  Kerby,  13  Mo.  157;  Myers  v.  Beeman,  9  Ired.  116;  Ormaud  v. 
Moye,  11  Ired.  564. 

313  Clark  V.  Coleman,  62  Ala.  243;  Stevens  v.  Dillmnn.  SC  111.  2.33; 
Noble  V  Thompson  O.  Co.,  79  Pa.  St.  309,  21  Am.  Pa-p.  06. 


807       PEll-ONAL  PROPERTY  SU1J.JECT  TO  GAUXISHMKNT.     §   170 

contain  special  pruvisions  pt>intinj;  out  the  practice  to 
be  pursued  in  cases  of  this  character.  In  the  absence 
of  special  provisions,  it  imisi  hi-  iuiplicW,  iimlci- all  stat- 
utes authorizing  a  ju(lj;uient  to  be  entered  in  the  origi- 
nal action  against  the  garnishee,  that  he  shall  have 
the  right  to  give  notice  of  the  proceeding  to  any  person 
whom  he  knows  claims  an  interest  in  the  debt  by  as- 
signment, and,  upon  giving  such  person  a  full  oppor- 
tunity to  present  his  claim,  then  that  the  latter,  as  well 
as  the  garnishee,  shall  be  bound  by  the  judgment 
against  him. 

Generally,  it  is  no  objection  to  an  assignment  that 
the  debt  is  not  due  when  assigned,  but  the  debt  may 
be  attempted  to  be  assigned  before  it  can  be  known 
that  it  will  ever  become  due.  Impecunious  debtors 
find  it  necessary  to  anticipate  their  future  earnings  and 
to  obtain  advances  on  account  thereof.  If  they  should 
make  an  assignment  for  the  mere  purpose  of  prevent- 
ing the  proceeds  of  such  earnings  from  reaching  their 
creditors  such  assignment  would  undoubtedly  prove 
abortive,  as  against  such  creditors,  by  virtue  of  the 
laws,  making  void  all  transfers  made  with  a  view  of  hin- 
dering, delaying,  or  defrauding  the  creditors  of  the 
transferrer.  If  not  subject  to  attack  ajid  demolition 
on  this  latter  ground,  the  next  question  to  arise  will 
be  whether  the  earnings  or  other  moneys  to  become 
due  had,  at  the  time  of  their  transfer,  such  an  existence 
in  the  eye  of  the  law  as  to  be  proper  subjects  of  assign- 
ment. The  general  rule  upon  tlie  subject  of  the  assign- 
ment of  moneys  to  become  due  for  personal  services  is, 
that  if  the  assignor  be  at  the  time  employed,  or  under 
a  valid  contract  of  employment,  he  may  assign  the 
wages  to  become  due  him,  and  that  such  assignment 


§  170    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        8C8 

is  paramount  to  any  subsequent  garnisliment.^^*  It 
does  not  appear  to  be  necessary  that  the  contract  of 
employment  be  for  a  specific  time.  It  is  sufficient  to 
uphold  an  assignment  of  wages  to  be  earned,  that  the 
assignor  is  then  actually  at  work  under  a  contract  at 
a  fixed  price,  payable  at  a  certain  time,  though  for  no 
definite  term  of  employment.^*'^ 

Hence,  an  assignment  by  one  who  w^as  employed  by 
the  day  was  upheld.^^'^  The  fact  that  a  workman  is 
employed  by  the  piece  is  not  material. ^^"  So,  one  who 
has  contracted  to  construct  a  building,  may  assign 
moneys  to  become  due  him  on  the  completion  of  his 
contract.^^^  But  an  assignment  of  moneys  to  be 
earned  under  a  contract  not  yet  secured,^^^  or  under 
such  employment  as  the  assignor  might  thereafter  ob- 
tain,^* or  for  services  to  be  rendered  beyond  his  pres- 
ent term  of  employment  or  office,  when  he  was  then 
serving  under  a  contract  or  election  for  a  time  speci- 
fied,^^^  are  all  void,  as  being  attempted  transfers  of 
mere  possibilities  not  coupled  with  any  interest.  In 
Maine,  it  has  been  held  that  in  equity  an  assignment 

816  Lannan  v.  Smith,  7  Gray,  150;  Boylen  v.  Leonard,  2  Allen,  407; 
Darling  v.  Andrews,  9  Allen  106;  Webb  v.  Jewett,  2  Met.  008;  White 
V.  Richardson,  12  N.  H.  93;  Hall  v.  Buffalo.  1  Keyes,  199;  Tiernay  v. 
McGarity,  14  R.  I.  231;  Johnson  v.  Pace,  78  111.  143;  Augur  v.  N.  Y. 
B.  &  P.  Co.,  39  Conn.  536;  Field  v.  Mayor  of  N.  Y.,  6  N.  Y.  179,  57 
Am.  Dec.  435,  and  note;  Devlin  v.  Mayor  etc.  of  N.  Y.,  50  How. 
Pr,  1;  63  N.  Y.  15;  Manly  v.  Bitzer,  91  Ky.  ,506.  34  Am.  St.  Rep.  242; 
Stenson  v.  Oaswell,  71  Me.  510;  Merchants  &  M.  N.  B.  v.  Barnes,  18 
Mont.  335,  56  Am.  St.  Rep.  586. 

817  Metcalf  V,  Kincaid.  87  la.  443.  43  Am.  St.  Rep.  391. 

818  Garland  v.  Harrington,  51  N.  H.  413. 

819  Hartley  v.  Tapley,  2  Gray,  565;  Kane  v.  Clough,  36  Mich.  436. 
24  Am.  Rep.  590. 

820  ilawley  v.  Bristol.  39  Conn.  26. 

821  Mulhall  V.  Quin.  1  Gray,  105. 
822.7prinyn  v.  Moffitt,  75  Pa.  St.  401. 
823  Eagan  v.  Luby,  133  Mass.  543. 


869       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  170 

may  bo  sustained  or  rufoiccd,  thoui^b  the  subjr-ct  of  it 
had  no  actual  or  potential  existcnci'  when  it  was  made, 
and,  hence,  at  least  between  the  parlies,  that  an  assign- 
ment of  wages  to  be  earned  of  a  certain  employer 
within  a  specified  time,  was  enforceable,  though  there 
was  no  valid  contract  of  employment  when  it  was 
made,  but  a  mere  expectation,  both  on  the  part  of  the 
assignor  and  the  employer,  that  at  a  later  date  the  for- 
mer would  be  employed  by  the  latter.""*' 

The  incumbent  of  a  public  ollice  may  assign  his  claim 
for  past  services.  With  respect  to  services  to  be  per- 
formed, or  salary  to  be  earned  in  future,  the  rule  is 
probably  difl'erent,  "it  being  contrary  to  the  public  pol- 
icy of  the  law  that  a  stipend  to  one  man  for  future 
services  should  be  transferred  to  another,  who  could 
not  perform  them."  "Unquestionably,  any  salary  paid 
for  the  performance  of  a  public  duty  ought  not  to  be 
perverted  to  other  uses  than  those  for  which  it  is  in- 
tended." ^'^  It  must,  however,  be  admitted  that  these 
principles  have  not  been  universally  applied;  '^'^  but  a 
further  consideration  of  them  is  hardly  germane  to  our 
subject,  because  salaries  due  to  ])ublic  officials,  whether 
assigned  or  not.  are,  upon  principles  of  public  policy, 
not  subject  to  execution.  When  the  garnishment  and 
the  transfer  of  a  debt  occur  on  the  same  day,  and  there 
is  doubt  with  respect  to  which  was  prior  in  point  of 
time,  the  burden  of  proof  has  been  adjudged  to  rest 
upon  the  assignee  to  establish  that  his  assignment  was 
anterior  to  the  garnishment.^^'     In  some  of  the  states, 

S24  Edwards  v.  Peterson.  SO  Me.  3G7.  G  Am.  St.  Rep.  207. 

825  Blllinp.s  V.  O'Brieu.  14  Abb.  Pr.,  N.  S.,  247;  Arbuckle  v.  Cow- 
tan.  .3  Bos.  &  P.  328. 

326  Brackett  v.  Blake.  S  Met.  3.3.1.  41  Am.  Deo.  442:  State  Bank  v. 
Hastings,  l."»  Wis.  7.'>:  Thurston  v.  Fairmau,  9  Huu,  oSo;  People  v. 
Dayton.  rjO  How.  Pr.  143. 

«27  Bergman  v.  Sells,  39  Ark.  97. 


§  170a    PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT,      870 

a  person  claiming  to  be  an  assignee  may  be  brought 
before  the  court  in  the  garnishment  proceedings,^® 
and  the  question  whether  the  assignment  is  valid  or 
fraudulent  there  litigated  and  determined/'-^ 

§  170  a.  Garnishee's  Duty  to  Urge  that  the  Debt  or 
Property  is  not  Subject  to  the  Garnishment.— if  the  gar- 
nishee has  notice  that  the  property  or  debt  sought  to 
be  garnished  is  for  some  reason  not  subject  to  the  writ, 
it  is  his  duty  in  his  answer  or  disclosure  to  state  the 
facts  of  which  he  has  notice,  and  thereby  prevent  the 
entry  of  any  judgment  against  himself,  for,  though  the 
third  person  who  is  a  claimant  of  the  debt  or  property 
has  notice  of  the  attempted  garnishment,  he  has  not, 
in  the  absence  of  some  statute  conferring  upon  him 
this  privilege,  any  right  to  appear  in  opposition  to  the 
garnishment,  if  the  garnishee  by  his  answer  has,  in 
effect,  admitted  his  liability  to  garnishment  by  failing 
to  disclose  any  adverse  claim  to  the  debt  or  property 
sought  to  be  garnished.'^^'*  If,  at  any  time  prior  to 
the  entry  of  judgment  against  him,  the  garnishee  is 
notified  of  an  alleged  assignment  of  the  debt  and  of 
the  name  of  the  assignee,  the  garnishee  must,  by  his 
original  or  supplemental  answer  or  disclosure,  state 
the  fact  of  such  assignment,  and  if  he  fails  to  do 
so,  the  fact  that  judgment  is   subsequently   entered 

329  Cadwalarler  v.  Hartloy,  17  Ind.  520;  Born  v.  Staaden.  24  111. 
320.  The  assisnoe's  right  cannot  be  determined  iinless  he  is  made 
a  party.     Simpson  v.  Tippin,  5  Stew.  &  P.  208. 

329Doj;sett  T.  St.  L.  M.  F.  Ins.  Co..  10  :Mo.  201;  Lee  v.  Tabor,  8 
Mo.  322;  Keep  v.  Sanderson.  2  Wis.  42.  00  Am.  Deo.  404.  12  WHs. 
352;  Prentiss  v.  Danaher,  20  Wis.  311;  Ingleliart  v.  Moore,  21  Tex. 
501. 

33oiioynard  x.  Phillips  etc.  Co.,  97  Ala.  533;  Cahoon  v.  Levy,  4 
Cal.  243;  Boylen  v.  Young,  0  Allen.  ."82;  Porter  v.  West,  64  Miss. 
548;  Wimer  v.  Pritchartt,  16  Mo.  252. 


871      PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  ITUa 

against  bim  and  its  payment  compelled,  constitutes  no 
defense  to  a  subsequent  action  brought  against  him  by 
the  assignee.""'*  If,  however,  the  garnishee  discloses 
by  his  answer  an  alleged  assigiiiuent,  it  becomes  the 
duty  of  the  court,  before  entering  any  judgment 
against  the  garnishee,  to  make  the  assignee  a  party  to 
the  proceeding  for  the  purpose  of  ascertaining  and  de- 
termining the  existence  and  validity  of  his  claim,'"* 
If,  prior  to  an  attemi)ted  garnishment,  the  same  debt 
or  propei'ty  has  been  garnished  in  some  other  action, 
or  has  otherwise  been  made  the  subject  of  a  prior  ju- 
dicial proceeding,  it  is  the  duty  of  the  garnishee  to  so 
stale  in  his  disclosure,  and,  failing  to  do  so,  he  may 
make  himself  amenable  to  the  judgments  in  both  pro- 
ceedings.^^^  If  the  property  or  debt  is  not  subject  to 
execution,  and  the  garnishee  has  notice  of  this  fact,  he 
should,  by  his  disclosure,  present  the  claim  of  exemp- 
tion, and,  failing  to  do  so,  if  a  judgment  is  entered 
against  him,  it  cannot,  though  subsequently  paid  by 
him,  protect  him  against  another  action  by  the  defend- 
ant in  execution.^^^ 

831  Woodlawn  v.  Purvis.  109  Ala.  ."11;  Larjre  v.  Mooro.  17  La.  2."9: 
Bnnkor  v.  Gilniore.  40  Me.  SS;  Butlor  v.  Mullen.  100  Mass.  4.j3; 
Wartlle  v.  Bimltss.  1.'51  Mass.  olS;  Byars  v.  (Jriflin.  01  Miss,  no:;",; 
rorter  v.  West.  CA  Miss.  548;  Coleman  r.  Seott,  27  Nob.  77:  Green- 
tree  V.  Bosenstook,  61  N.  Y.  ^SS;  liana  ford  v.  Hawkins.  18  R.  I. 
432;  Seward  v.  Ileflin.  20  Vt.  144;  Marsh  v.  Davis.  24  Vt.  363. 

332  Edwards  v.  Levlnshon.  SO  Ala.  447;  Mansfield  v.  Stevens.  31 
Minn.  40;  Ilanaford  v.  Hawkins,  18  IL  I.  432;  Chesapeake  etc.  R.  R. 
V.  Paine.  29  Oratt.  .")ti2. 

333  Boyer  v.  Fleniinj;.  ."S  Mo.  43S:  Rood  v.  Gace.  4  How.  rMiss.'k 
2.53;  Schuernian  v.  Foster,  S2  Wis.  319;  Clark  v.  GOu.OOO  ft.  of  Lum- 
ber. 65  F»>d.  Rep.  236. 

334  Craft  V.  Louisville  etc.  Co..  93  Ala.  22:  Emmons  v.  Southern 
T.  Oo.,  80  Ga.  760;  Chi^a^o  etc.  Co.  v.  Ra.uland.  84  111.  37o;  Terre 
Haute  etc.  Co.  v.  Baker.  122  Ind.  4.33;  Smith  v.  Dickson,  .=iS  Li.  444; 
Mull  V.  Jones,  33  Kan.  112;  Daniels  v.  Marr,  73  Mf.  397;  Crisp  ▼. 


S  171     PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        872 

§  171.  Asserting  Garnishment  as  a  Defense.— A  gar- 
nishee may  at  the  same  time  be  pursued  both  by  his 
creditor  and  by  his  creditor's  creditor.  This  question 
then  occurs:  In  what  mauner  aud  by  what  means  may 
the  garnishee  prevent  the  pursuit  by  both  parties  from 
being  successful?  or,  in  other  words,  how  shall  he 
avoid  the  necessity  of  the  double  payment  of  a  siugle 
debt?  ^Manifestly  the  garnishment  may,  in  some  man- 
ner, be  brought  to  the  attention  of  the  court,  and 
when  so  brought  to  its  attention,  must  be  given  some 
effect,  otherwise  a  garnishment  could  always  be  an- 
nulled by  a  subsequent  action  for  the  garnished  debt. 
That  the  garnishment  does  not  constitute  proper  mat- 
ter for  a  plea  in  bar  is  obvious,  for  the  cause  of  action 
yet  exists.^*"**  If  a  person  is  first  garnished  by  his 
creditor's  creditor,  and  is  afterward  sued  by  the  cred- 
itor, there  are  a  number  of  exceedingly  respectable  au- 
thorities which  insist  that  the  garnishment  may  be 
asserted  by  a  plea  in  abatement  to  the  suit  brought  by 
the  creditor.''*^'^  Upon  this  theory,  the  cause  of  action 
which  existed  anterior  to  the  garnishment  is  treated 

Ft  Wayne  etc.  Co.,  98  Mich.  648;  Fletcher  v.  Wear.  81  Mo.  524; 
Mace  V.  Heath.  34  Neb.  790;  Burke  v.  Hance.  76  Tex.  76.  18  Am.  St, 
Rep.  28;  Missouri  etc.  Co.  v.  Whipsker,  77  Tex.  14.  19  Am.  St.  Rep. 
734;  Winterflekl  v.  Milwaukee  etc.  Co.,  29  Wis.  589;  Pierce  v. 
Chicago  etc.  Co..  36  Wis.  283. 

835  Clise  V,  Freeborne,  27  Iowa,  280;  Near  v.  Mitchell,  23  Mich. 
382;  Ladd  v.  Jacobs,  64  Me.  347;  Herlow  v.  Orman.  3  N.  Mex.  471. 

836  Brook  V.  Smith,  1  Salk.  280;  Embree  v.  Hanna.  5  Johns.  101; 
Brown  v.  Somerville,  8  Md.  444;  Haselton  v.  Monroe,  18  N.  H.  598; 
Phila.  Sav.  Inst.  v.  Smethurst,  2  Miles,  439;  Fitzgerald  v.  Caldwell, 
1  Yeates,  274;  Irvine  v.  Lumberman's  Bank.  2  Watts  &  S.  190; 
Cheongwo  v.  Jones,  3  Wash.  C.  C.  359;  Wallace  v.  McConnell.  13 
Pet.  136;  Mattingly  v.  Boyd,  20  How.  128;  Clise  v.  Freeborne.  27 
Iowa,  280;  Near  v.  Mitchell,  23  Mich.  382;  Grosslight  v.  Cresup.  .5S 
Mich.  .531;  Burt  v.  Reilly,  82  Mich.  251;  Mars  v.  Virginia  H.  I.  Co., 
17  S.  C.  514. 


873       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT,    f  171 

as  lliM'oby  suspended  until  the  determination  of  the 
action  in  which  the  garuisliment  issued;  and  any  action 
<*omuienced  after  such  garnishniciil  is  al^itcd,  (h*,  in 
other  words,  thrown  out  of  court,  leaving;  the  phiintilT 
no  other  remedy  than  to  wait  until  tlic  tcriiiinatidu  of 
the  suit  in  which  the  garnisiiiiicnt  was  issued,  and 
then  to  recommence  his  action.  The  result  of  this  sus- 
pension of  plaiutifl's  cause  of  action  may  be  very  dis- 
astrous to  liim.  To  illustrate:  Let  us  suppose  that  A  is 
indebted  to  B,  and  that  C,  in  an  action  against  15.  gar- 
nishes this  debt.  It  may  be  that  B  does  not  owe  C,  and 
will  ultimately  recover  judgment  against  him  for 
costs;  or,  even  when  B  does  owe  C,  the  debt  may  be 
satislied  out  of  a  levy  made  on  other  property,  and 
without  enforcing  the  garnishment.  But  if,  pending 
this  litigation  between  B  and  C,  B  can  take  no  pro- 
ceedings against  A,  the  latter  may  in  the  mean  time 
become  insolvent,  or  perhaps  be  relieved  from  liability 
through  the  operation  of  the  statute  of  limitations. 
This  wrong  to  B  can  be  avoided  only  by  permitting 
him  to  commence  and  maintain  his  action  against  A, 
and  to  take  such  X)roceedings  therein  as  will  enable 
him  to  secure  his  debt.  We  therefore  yield  our  assent 
to  those  authorities  which  insist  that  a  preceding  gar- 
nishment never  constitutes  a  sufficieut  cause  for  the 
abatement  of  a  suit.*'**'^  In  states  whence  these  au- 
thorities proceed,  the  remedy  of  the  garnishee  is  either 
by  a  motion  for  the  postponement  of  the  suit  brought 

S3T  Winthrop  v.  Carlton.  8  itass.  4r.n:  rarrnl  v.  McDonnell.  10 
Mart.  609:  Morton  v.  Webb,  7  Vt.  123:  Spioer  v.  Spfcer.  2.3  Vt.  078; 
Jones  r.  Wood.  30  Vt.  2GS:  Crawford  v.  Sladt^.  0  Ala.  887.  44  Am. 
Dec.  463;  Smith  v.  Blatchford.  2  Ind.  184.  ."2  Am.  Dec.  .504:  Hick^ 
T.  Oloason.  20  Vt.  130:  McFnddon  v.  0*Donn.-Il.  IS  Pnl.  160;  MrKoon 
V.  McDormott.  22  Pal.  607,  S3  Am.  Dec.  SO;  Lyueli  v.  Ilaitford  F.  I. 
Oo..  17  Fed.  Rep.  627. 


§  171     PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.        874 

against  him  by  his  creditor,  or  by  asking  that  the  judg- 
ment in  such  suit  shall  be  stayed  until  he  is  released 
from  liability  arising  in  consequence  of  the  garnish- 
ment.   If  the  garnishment  is  made  after,  instead  of  be- 
fore, the  commencement  of  the  suit,  it  may,  in  those 
states  where  the  validity  of  a  garnishment  so  made  is 
conceded,  be  brought  to  the  attention  of  the  court,  and 
a  stay  of  proceedings  obtained  until  the  release  or  set- 
tlement of    the    proceedings    by  garnishment.^**     In 
cases  where  the  debtor  has  no  other  means  of  escape 
from  a  twofold   enforcement   of  the  liability  against 
him,  he  may  procure  an   injunrtion.**^    The   garnish- 
ment may  have  resulted  in  a  judgment  against  the  gar- 
nishee, in  which  case  the  effect  of  such  judgment  prior 
to  its  satisfaction,  upon  an  action  brought  against  him 
by  his  original  creditor,  remains  to  be  considered.    In 
England,  such  a  judgment  seems  to  be  regarded  as  a 
satisfaction  or  merger  of  the  original  debt,  and  there- 
fore as  a  complete  bar  to  all  further  action  against  the 
garnishee,****  and  a  like  effect  has  been  sometimes  con- 
ceded to  it  in  the  United  States.**^    But  the  judgment 
in  garnishment  does  not  in  fact  produce  any  satisfac- 
tion until  it  has  been  paid,  or  property  has  been  levied 
upon  sufficient  to  produce  its  payment  in  whole  or  in 
part.    The  debtor  whose  demand  was  garnished  is  not 
entitled  to  any  credit  for  the  amount  thereof  upon  the 
debt  due  from  him  to  the  garnishing  creditor,  and  may, 

338  Blair  v.  Hilgedick,  45  Minn.  23;  Smith  v.  Carroll,  17  R.  I.  125; 
Lynch  v.  Hartford  F.  I.  Ck).,  17  Fed.  Rep.  G27;  Harden  v.  Wheelock, 
1  Mont.  49;  Drew  v.  Towle,  7  Fost.  412;  Wadleigh  v.  Plllsbury,  14 
N.  H.  373.    But  see  Waldheim  v.  Bender,  36  How.  Pr.  181. 

839  Preston  v.  Harris,  24  Miss.  247. 

340  McDaniels  v.  Hughes,  3  East.  367;  Savage's  Case,  1  Salk.  291. 

841  Matthews  v.  Houghton,  11  Me.  377;  McAllister  v.  Brooks,  22 
Me.  80,  .38  Am.  Dec.  282;  Coburn  v.  Currens,  1  Bush.  242;  King  v. 
Vance,  46  Ind.  246. 


87.>       PERSONAL  PROPERTY  SUBJECT  TO  GARNISHMENT.     §  17 i 

notwithstanding  the  garnishment  judgment,  be  com- 
pelled to  pay  the  whole  debt.  Therefore,  he  ought  not 
to  be  bound  absolutely  by  the  garnishment  judgment 
against  his  debtor;  nor  should  the  latter  be  allowed  to 
plead  it  in  bar  unless  he  has  satistied  it  absolutely  or 
conditionally,  either  in  whole  or  in  part.'***^  The  pay- 
ment by  the  garnishee  of  the  judgment  against  tiim 
necessarily,  to  the  extent  thereof,  constitutes  a  bar  to 
any  further  action  against  him  by  his  creditor;'***'*  pro- 
vided he  has  made  a  complete  disclosure  of  the  facts 
known  to  him  prior  to  the  entry  of  the  judgment 
acainst  him.  As  .we  have  already  shown,  a  judgment 
against  a  garnishee,  though  followed  by  payment,  is 
not  available  to  protect  him  against  an  assignee  or 
other  person  interested,  who  was  not  a  party  to  the 
proceeding,  and  therefore  is  not  bound  by  such  judg- 
ment.^^ 

842Meriam  v.  Rundlett,  13  Pick.  511:  Brannon  v.  Noble,  8  Ga. 
549;  Farmer  v.  Simpson,  6  Tex.  303;  Cook  v.  Field.  3  Ala.  53,  3G  Am. 
Dec.  43G;  Yazoo  etc.  R.  Co.  v.  Fulton.  71  Miss.  3So. 

843  Allen  V.  Watt,  79  111.  284;  Lancashire  I.  Co.  v.  Corbetts,  1G5 
111.  592,  56  Am.  St.  Rep.  275. 

84*  Ante,  §  170a. 


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